**UPDATED MARCH 23, 2023**
EPIC has a demonstrated history of successful impact litigation. From EPIC v. Johnson I (1983) (CA Appellate Court) and Sierra Club and EPIC v. Board of Forestry (1988) (CA Supreme Court case; Timber Harvest Plans [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 success of Bair et al. v. CalTrans (2010) (Richardson Grove case), EPIC has used the courts to intervene when other government failed.
One lawsuit, however, seems to transcend the rest, standing as a hallmark accomplishment by changing the legal and regulatory standards for environmental review and protection on private forestlands in California. EPIC v. Johnson I (1983) (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 private timberland owners. EPIC v. Johnson I remains the single most pivotal court case of lasting regulatory consequence for California’s private timber industry—the legal environmental victory that forced it into the modern age of increased accountability.
Setting the Stage
First, in 1970, the California legislature enacted a piece of landmark legislation that became known as the California Environmental Quality Act (CEQA). Through an Environmental Impact Report (EIR) process, CEQA requires California state agencies proposing projects on state/local lands must evaluate potentially significant environmental impacts, and if identified, mitigate all significant adverse impacts to insignificance. The spirit of CEQA helped to bring about environmental awareness and consciousness in the public debate about growth, development, and industry in the 1970s, and, still to this day, CEQA is one of the legal pillars that essentially make EPIC’s (and all of our) work engaging in environmental democracy possible.
Secondly, legal action challenging the self-regulation of the industry shook the landscape. In Bayside Timber v. Board of Supervisors (1971), 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 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.
The Sinkyone, Georgia-Pacific & 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 1970s, aimed at halting the aerial application of toxic herbicides on Northern California’s forests and communities. Soon, EPIC became involved in the struggles to protect and defend at-risk landscapes; specifically, the area now known as the Sinkyone Wilderness on the northern Mendocino County coast, which is situated within the traditional territory of Sinkyone tribal peoples who have lived in and cared for this region for millennia. At the time, Georgia-Pacific Corporation (G-P) held title to thousands of acres of land within the Sinkyone and other traditional, unceded tribal territories, and the company was aggressively clearcutting the remaining old-growth redwoods. EPIC commented on all of G-P’s THPs along the Sinkyone Wilderness Coast between 1977 and 1986.
By the mid 1970s, the Sinkyone coast of northern Mendocino had become an important battleground for activist-led conservation efforts that eventually resulted in landmark litigation. Directly linked to these efforts was California State Parks’ designation of two land management units ultimately comprising the 7,250-acre Sinkyone Wilderness State Park. Initially, the Bear Harbor unit in the north was established after most of that land was acquired through the 1975 purchase of the old Bear Harbor Ranch. The Usal Beach unit in the south was added following the 1986 purchase of additional lands. EPIC, the public, and tribal interests worked with the state legislature, State Parks, and land acquisition interests such as Trust for Public Land to secure funding for the purchase of G-P’s holdings along the Sinkyone coast.
EPIC v. Johnson
In 1983, EPIC filed its first forestry-related litigation aimed at stopping G-P from clearcutting 75 acres of old-growth redwoods in the Sally Bell Grove—named by activists to honor the Sinkyone woman who survived an 1850s massacre of her people. By this time G-P had already clearcut nearly all the surrounding areas of old-growth redwood, causing extensive damage to culturally and ecologically sensitive areas of the Sinkyone region. G-P had also submitted a THP to clearcut the 75-acre grove, which was approved by the California Department of Forestry & Fire Protection (CDF, now known as CAL FIRE). To address these and other impacts, EPIC and the International Indian Treaty Council (IITC) filed suit against the agency and its director Ross Johnson, as well as the Board of Forestry, the Secretary of Resources, Rex Timber, and G-P.
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, and that CDF had abused its discretion by approving the THP without requiring G-P to analyze the cumulative impacts of its combined old-growth logging projects in the Sinkyone coast. Second, EPIC argued that CDF had abused its discretion by failing to require G-P 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.
After the state court in Mendocino County denied EPIC’s request for a Writ of Mandate to block the logging until CDF mitigated the issues, EPIC appealed the decision to the California Court of Appeals. The appellate court granted a Stay temporarily stopping the logging until coming to the final decision that CDF had indeed abused its discretion, and issuing a Writ of Mandate overturning CDF’s approval of G-P’s Sally Bell Grove THP on July 25, 1985.
Legal Claims Analysis
EPIC prevailed on all four of its major claims against the approval of G-P’s Sally Bell Grove THP. For the first claim, the court agreed with EPIC that all substantive provisions of CEQA apply to the approval of THPs unless such provisions had been explicitly exempted from application by statute. Two earlier court cases had also found that the Forest Practice Act and THPs must comply with CEQA; however, in EPIC v. Johnson I, CDF argued that it only needed to approve THPs utilizing the criteria of the Forest Practice Act and Rules. The court 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 G-P 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 court rejected this argument, referring back to CEQA, which requires public agencies to consult with all agencies having jurisdiction over affected resources. G-P was ordered to conduct a complete archaeological inventory for its entire 50,000-acre Usal Unit. Although pressed to do so, the court did not impose mandatory consultation with Native Americans as part of this ruling.
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-day window following 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 I, the same G-P 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 responded by filing EPIC v. Johnson II. This second case never came to a decision, however, as EPIC’s victory in the original case, coupled with public pressure, legislatively-allocated funds through the State Coastal Conservancy, and private funds from Trust for Public Land and Save the Redwoods League resulted in the purchase of 7,100 acres of G-P lands on the Sinkyone Coast in December of 1986. 3,256 acres of this was transferred to State Parks and added to the existing Sinkyone Wilderness State Park, with the remaining 3,844 acres acquired by the InterTribal Sinkyone Wilderness Council in August 1997 as a Tribal Protected Area.
EPIC v. Johnson I not only saved the old-growth of the Sally Bell Grove, but also, and perhaps even more significantly, it forced CDF and the private timber industry to address the cumulative impacts of logging activities on sensitive and irreplaceable natural resources and Native American cultural landscapes and values. However, it took CDF and the Board of Forestry about six more years to come up with a check-list process for THP reviews. And, despite report after report and blue-ribbon panel after panel, thirty years after the EPIC v. Johnson decision, adequate reform is still being held up. Efforts continue to improve processes for the protection of Native American cultural places and heritage, and compliance with CEQA, with some good results. But consistent and meaningful government-to-government consultation with Tribes, as required of federal agencies, has not yet been fully implemented between state agencies and Tribes in California.
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 ten years. Gienger said that the legacy effects and cumulative impacts of historic logging activities from the late 1800s but especially since 1950 until today, are still being felt.
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 challenging and changing law, regulation, and policy governing the private timber industry in California through its use of strategic litigation. Today, EPIC is deeply engaged in developing transparency, efficiency, and environmental integrity in the private timber industry regulatory process. EPIC will continue working to advocate for our forests, watersheds, and wildlife on privately managed forestlands, uphold the public trust, and keep both public agencies and private industries accountable to the law.