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Mitigation Measures May Survive Expired Approval

The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area.

Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation.

CDF approved a Timber Harvest Plan (THP) for the property in 1988 and again in 1998. Wind studies prepared for the project showed cutting trees in certain areas of the property would funnel and accelerate storm winds on the southeast corner, creating the potential for damage to the adjacent home and property. Both THP approvals included mitigation measures prohibiting tree removal within 200 feet of the neighboring home without the neighbor’s prior approval. THPs are generally valid for three years. In 2008, the property owner requested a one-time conversion exemption under the Forest Practice Act to harvest up to three acres of timber for conversion to a non-timber use. The exemption area encroached into the wind buffer; however, CDF approved the exemption as a ministerial action without any apparent consideration of the previously adopted mitigation measures.

The court first reviewed the Forest Practice Act as a comprehensive system for regulating timber harvesting through CDF approval of Timber Harvest Plans. Noting that preparation of THPs is the functional equivalent of preparation of an EIR under CEQA, CDF may impose mitigation measures on THP approvals.

The court then addressed the challenger’s claim that approval of the exemption was analogous to impermissibly piecemealing a project by chopping it into smaller pieces to avoid considering impacts of the project as a whole. The court discussed the Orinda Assn. v. Board of Supervisors piecemealing case and agreed that the applicant could not avoid environmental review of the larger project by securing a separate ministerial permit, particularly where “the permit would undo the protective effects of conditions imposed on a project’s approval.” Addressing expiration of the previously approved THPs, the court noted further that the adopted mitigation was not nullified by the passage of time. The wind buffer in this case was required in order to protect the neighbor from the effects of timber harvesting whether the legal right to harvest had expired or not.

Finally, the court clarified that adopted mitigation measures are not binding forever. An agency may amend or even delete mitigations, but only after “reviewing the continuing need for the mitigation, stating a good reason for its action, and supporting it with substantial evidence.”

For ministerial or discretionary projects with prior approvals, this case counsels careful consideration of whether mitigation measures were adopted with the prior approval and whether the need for such mitigation measures continues. Any consideration of modifying or deleting adopted mitigations should be documented in the record and should be supported by substantial evidence explaining and justifying the action.

This case also provides a useful discussion of ministerial elements that may be included in an otherwise discretionary application under CEQA’s “whole of the action” principles. For a good discussion of a related element that was found not to be within the “whole of the action”, see last year’s Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210. That case analyzed a water transfer and found that it had “independent utility” and was not within the ambit of a related but separate program of comprehensive water contracts.

For more information about the Katzeff v. California Department of Forestry and Fire Protection case, CEQA or other land use matters, please contact our attorneys at 800.464.3559.