Legendary Landmark—EPIC v. Johnson turns thirty

By
Wednesday, July 15th, 2015

Sally.Bell.GroveEPIC has long been recognized as the regional leader in environmental advocacy for Northwest California’s forests. Our three-pronged approach of education, outreach, and strategic litigation has led to improvements in land management, law, and policy. In EPIC’s 38-year history, we have filed an untold number of lawsuits aimed at holding government and the industry accountable and protecting our wild California.

EPIC has a demonstrated history of successful impact litigation. From EPIC v. Johnson and Sierra Club v. Board of Forestry (1988) (CA Supreme Court Case; THPs may not be approved that fail to include information on impacts to old-growth dependent species), to Marbled Murrelet and EPIC v. Pacific Lumber Company (1993) (Owl Creek federal case), to the more recent successes of Bair et al. v. CalTrans (2010) (Richardson Grove case), EPIC has used the courts to intervene where government has failed.

One lawsuit, however, seems to transcend the rest, standing as a hallmark accomplishment in changing the legal and regulatory landscape for environmental review and protection on private forestlands in California. EPIC v. Johnson (1985) 170 Cal.App.3d 604, has stood the test of time as one of the most significant legal victories in the effort to properly regulate the private timber industry. EPIC v. Johnson changed the legal and regulatory landscape for the timber industry in California and brought it into the modern age.

Setting the Stage

In the beginning5The State of California has struggled with how to regulate the private timber industry since its inception, the first Board of Forestry was appointed in 1885. After WWII, an ad valorum tax became law, a misguided policy to feed the building boom – landowners were annually taxed on their standing timber until they cut 70% of it. This law remained in effect until 1976. By the late 1950’s and early 1960’s, evidence was beginning to mount demonstrating that this policy and the timber industry was responsible for depleted forests, damaged watersheds, and diminishing fisheries and wildlife. To this point, the industry had basically been self-regulated. However two major events would inexorably change this dynamic.

First, in 1970, the California legislature enacted landmark legislation that became known as the California Environmental Quality Act (CEQA). Through an Environmental Impact Report (EIR) process, CEQA requires that projects must evaluate potentially significant environmental impacts, and if such potential impacts are identified, must mitigate all significant adverse impacts to insignificance. The spirit of CEQA brought into being an environmental awareness and consciousness in the public debate about growth, development, and industry.

Secondly, legal action challenging the self-regulation of the industry shook the landscape. In 1971, Bayside Timber v. Board of Supervisors, the courts ruled that the existing Forest Practice Act was unconstitutional because the Board of Forestry, which regulated the private timber industry, was composed entirely of the industry itself.

In 1973, the State legislature enacted the modern Forest Practice Act. The modern Forest Practice Act created the contemporary review and regulatory system that we have come to know today. In order to harmonize the Forest Practice Act and CEQA, the Secretary of Resources certified the Forest Practice Act and extant Forest Practice Rules as a certified regulatory program under CEQA in 1976, thus exempting the private timber industry from the requirements to prepare an Environmental Impact Report (EIR). A certified regulatory program is an alternative program under CEQA, which allows for exemptions from preparation of an EIR so long as the program contains all the substantive requirements of CEQA.

Georgia-Pacific, the Sinkyone, and the “Sally Bell” Grove
It is in the backdrop of this new legal and regulatory landscape that our story truly begins. EPIC was born out of the herbicide wars of the 1970’s. Soon, EPIC became involved in the struggles to protect and defend at-risk landscapes. In particular, the area that is now Sinkyone State Wilderness and Sinkyone Wilderness State Park on the northern Mendocino County coast, traditionally used by Native Americans, became a focal point of conservation efforts, and eventually, litigation.

The Sinkyone coast of northern Mendocino was a battleground for conservation efforts in the mid 1970’s. California State Parks designated two land management units as projects, the Bear Harbor unit in the north, and the Usal beach unit in the south. In 1975 most of the Bear Harbor unit was acquired with the purchase of the old Bear Harbor Ranch.

Sally Bell GroveIn 1977, Georgia-Pacific proposed to liquidate the old-growth forests of the Little Jackass Creek watershed. The California Department of Forestry convinced GP to conduct its logging operations in stages, as opposed to cutting the entire watershed at once. In late 1977, GP had it’s first THP in the watershed approved with 40 acre and 80 acre clearcuts on either side of what would eventually became known as the “Sally Bell” grove. GP carried out two more approved THPs in 1978 and 1979, one adjacent to the Sally Bell Grove area and the other above Bear Harbor mainly in Jackass (or Wolf Creek) watershed.

In the THP on the knoll and valley adjacent to the Sally Bell Grove area, which was mostly clearcutting, a designated significant archaeological site was bulldozed by GP to make a layout pad for falling an old-growth redwood. GP was taken to court and ended up having to do a complete archaeological inventory for their entire 50,000 acre Usal unit. The judge was pressed to, but did not, impose mandatory consultation with Native Americans as part of his ruling.

EPIC commented on all of the GP THPs along the Sinkyone Wilderness Coast between 1977 and 1986. In 1983, EPIC filed its first forestry-related litigation aimed at stopping GP from clearcutting the Sally Bell Grove. EPIC, the public, and tribal interests worked with the state legislature, State Parks, and land acquisition interests such as Trust for Public Lands to try and secure funding to purchase the GP holdings along the Sinkyone coast.

EPIC v. Johnson

In 1983 GP proposed to clearcut 75 acres of old-growth redwoods of the Sally Bell Grove, and some other areas, and CDF approved the THP. EPIC and the International Indian Treaty Council (IITC) filed suit against the agency, CDFCDF, and its Director, Ross Johnson, as well as the Board of Forestry, the Secretary of Resources, Rex Timber, and GP.

EPIC v. Johnson brought four major claims. First, the suit contended that the six-page THP approved by CDF must comply with all provisions of CEQA from which they are not explicitly exempt that CDF abused its discretion by approving the THP without requiring GP to analyze the cumulative impacts of its combined old-growth logging projects in the Sinkyone coast. Second, EPIC argued that CDF abused its discretion by failing to require GP to consult with the Native American Heritage Commission over sensitive historic cultural sites. Third, there were insufficient steps taken to ensure that the heritage sites were adequately protected. Finally, EPIC argued that CDF abused its discretion by failing to provide a timely response to public comments when it approved the THP.

EPIC filed suit in state court. The case was heard in Mendocino County. The Mendocino County court denied EPIC’s request for a Writ of Mandate. EPIC appealed the decision to the California Court of appeals, and the Court granted a Stay until a decision could be made. The appeals court, unlike the trail court, agreed that CDF had abused its discretion and issued a Writ of Mandate setting aside the approval of the THP on July 25, 1985.

Legal Claims Analysis

EPIC prevailed on all four of its major claims against the approval of the THP. The court agreed with EPIC that all substantive provisions of CEQA apply to the approval of THPs unless such provisions had been explicitly exempt from application by statute. Two previous court cases also found that the Forest Practice Act and THPs must comply with CEQA, however, in EPIC v. Johnson, CDF itself argued that it only needed to approve THPs utilizing the criteria of the Forest Practice Act and Rules. The courts once again rejected this argument, and thereafter, there was little debate as to the applicability of CEQA to THP approvals.

The court agreed with EPIC that CDF had abused its discretion by failing to require GP to analyze cumulative impacts. Here, CDF argued that it need not consider cumulative impacts because there were no explicit rules requiring such analysis in the Forest Practice Rules. The court also rejected this argument.

Second, the court agreed with EPIC that CDF had abused its discretion by failing to consult with Native American representatives over potential impacts to cultural resources. Here again, CDF fell back on the argument that it need not consult because there were no rules in the Forest Practice Rules requiring it to do so. The courts rejected this argument, referring back to CEQA, which requires public agencies to consult with all agencies having jurisdiction over the affected natural resources.

Third, the Court agreed that adequate measures were not considered or implemented to ensure that the Native American Heritage sites were protected.

Finally, the court agreed with EPIC that CDF had abused its discretion by failing to provide a substantive response to public comments within the then required 10 days after THP approval. The court reasoned that CEQA called for a good faith, reasoned response to public concerns that showed why a particular comment was rejected or accepted. Responses to public concerns are now issued at the time of THP approval.

Enduring Legacy

After the landmark victory of EPIC v. Johnson, the same GP forester who had written the set-aside THP for the Sally Bell grove resubmitted the THP to CDF, changing only the date on the THP application. EPIC v. Johnson II was filed. This case never resulted in a decision, however, as EPIC’s victory in the original case, coupled with public pressure, legislatively-allocated funds, and funds from the Trust for Public Lands and the Save-the-Redwoods League resulted in the purchase of the 7,100 acres of GP lands on the Sinkyone Coast in December of 1986. 3,255 acres of this was transferred to State Parks and incorporated into Sinkyone State Wilderness and Sinkyone Wilderness State Park, with the rest acquired by the Sinkyone Intertribal Council in 1997 as Sinkyone InterTribal Wilderness.

Not only did EPIC v. Johnson save the old-growth of the Sally Bell grove, but, perhaps even more significantly, it forced CDF and the private timber industry to address the cumulative impacts of its logging activities on sensitive and irreplaceable natural resources. It took CDF and the Board of Forestry about six years to come up with a check-list process, and still thirty years after the EPIC v. Johnson decision adequate reform – despite report after report and blue-ribboned panel after panel – is still being held up. There were and continue to be efforts to improve the processes for protection of Native American Heritage, and compliance with CEQA, that have had some good results. There still is not an ongoing reality of true consultation with California Indians that is required by federal agencies.

Work Remains

Fulfillment of the full spirit and intent of EPIC v. Johnson remains elusive. Although the Board of Forestry did create a mechanism for the analysis of cumulative impacts from approved THPs, significant problems remain. According to EPIC co-founder, and EPIC v. Johnson plaintiff, Richard Gienger, the full intent of EPIC v. Johnson has never been implemented or realized. “The current system doesn’t work and no one wants to face it,” said Gienger. Specifically, Gienger calls out the gross inadequacy of restricting the cumulative impacts analysis only to projects conducted within the past 10 years. Gienger said that the legacy effects and cumulative impacts of historic logging activities are still being felt, some from the late 1800s, but especially since 1950 and right up to today. More troubling, however, is the institutional culture at CDF and other state agencies that results in unjustifiable decision-making. “Decisions aren’t being made based on the conservation and recovery of the forests, watersheds, and wildlife; nor on the long-term needs and balanced relationships with human communities,” Gienger said. “Decisions are being made based on current net economic value which basically forces cutting as soon as there is merchantable value.”

EPIC has proved itself as probably the singular most effective environmental advocacy group at changing law, regulation, and policy governing the private timber industry in California using strategic litigation. Today, EPIC is deeply engaged in the newly created “Timber Regulation and Forest Restoration Program” which is aimed at developing transparency, efficiency, and environmental integrity in the private timber industry regulatory process. EPIC will continue to advocate for our forests, watersheds, and wildlife on privately managed forestlands and will work to uphold the public trust and keep both public agencies and private industry accountable to the law.