Ebbetts Pass Forest Watch v. CA Dept. Forestry 5/15/06 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F042896M

Case Date: 07/20/2006

Preview:Filed 5/15/06

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
EBBETTS PASS FOREST WATCH et al., F042896 Plaintiffs and Appellants, (Super. Ct. No. CV48910) v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; SIERRA PACIFIC INDUSTRIES, Real Party in Interest and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING; SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: IT IS ORDERED that the published opinion filed herein on April 14, 2006, and reported in the Official Reports [138 Cal.App.4th 779] be modified in the following particulars: 1. At the top of page 1, replace the notation CERTIFIED FOR PUBLICATION with CERTIFIED FOR PARTIAL PUBLICATION* and add the following footnote:
*Pursuant to California Rules of Court, rules 976(b) and 976.1, this

opinion is certified for publication with the exception of part IV.C.7 of Discussion.

2. On page 38, delete the text of the heading for part IV.B.6 and insert the following text in its place: Violations are presumptively prejudicial 3. On page 38, before the second full paragraph beginning "Alternatively, even if the presumption of prejudice did not apply in this case," insert the following heading and editorial footnote: 7. Regardless of the presumption, the violations are prejudicial* That editorial footnote shall read: See footnote, ante, page 1. 4. On page 38, immediately following the new heading 7 and its editorial footnote, add as footnote 31 the following footnote, which is not to be published and will require renumbering of all subsequent footnotes: part is not published because, as an alternative to our ruling on the presumption of prejudice, it is dicta and might be misinterpreted if taken out of context. Should a reviewing court decide the presumption of prejudice does not apply, the inclusion of this part may avoid a remand. 5. In the paragraph commencing at the bottom of page 70 and continuing onto page 71, the last sentence of the paragraph, beginning "Second, DPR's program" is modified to read as follows: Second, DPR's program does not expressly require county agricultural commissioners or licensed pest control advisers to evaluate the cumulative impacts that may occur as a result of the herbicide use that they authorize and no evidence was introduced to show they do in fact undertake such an evaluation. 6. The following supplemental opinion upon denial of rehearing is certified for publication in its entirety. SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING I. Geographic Area Used to Assess Cumulative Impacts
31This

Our decision on SPI's and CDF's use of geographic areas as part of the analysis of cumulative impacts is quite narrow. It only concerns compliance with the procedures that must be followed to evaluate cumulative impacts. We do not reach broader issues regarding the quality of CDF's factual analysis or the conclusions it reached. In short, we do not consider the destination CDF reached on its journey, we only decide that CDF set foot off the required path. As a result of the missteps, SPI and 2.

CDF must undertake the journey again and, next time, must not stray from the path laid out in the regulations. A. Contentions in Petitions for Rehearing

SPI and CDF both filed petitions for rehearing that asserted the assessment areas in each of the THP's were in fact varied by species. CDF stated "that the cumulative impact analysis undertaken by [CDF] ... varied the area of analysis depending upon the species being considered." SPI asserts this court erroneously assumed that the same assessment area was used for all species and the record "unequivocally demonstrates that assessment areas were tailored for different species to the extent appropriate" and in full compliance with this court's interpretation of Technical Rule Addendum No. 2. Restated in terms of our six-step approach, SPI and CDF contend this court committed error in completing the fourth step of the approach. The fourth step involved determining what CDF did and did not do in applying the regulatory provision that stated biological assessment areas will vary with the species being evaluated and its habitat. (See part IV.B.4.) We now expand our discussion of steps three and four to further demonstrate that SPI's and CDF's use of geographic areas failed to comply with the methodology for assessing cumulative impacts set forth in the Forest Practice Rules. (See Cal. Code Regs., tit. 14,

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