EPIC has filed a petition with the California Office of Administrative Law alleging that the California Department of Forestry is illegally employing a so-called “underground regulation” via its use of an unpromulgated review and approval standard for Timber Harvest Plans that have the potential to adversely impact Northern Spotted Owls.
For the last several years, EPIC’s Northern Spotted Owl self-defense campaign has been focused on challenging the use of antiquated and inadequate California Forest Practice Rules (FPRs) that the U.S. Fish and Wildlife Service (Service) has decried as inadequate and likely to result in “take” of this federally-listed species. In particular, the provisions of so-called “option-(g)” (section 919.9(g) [939.9(g)] of the FPRs) have been called out by the Service as inadequate to prevent loss of occupied NSO territories on private lands resulting from timber harvest activities.
In February 2013, EPIC presented a petition to the California Board of Forestry requesting that it delete the offensive provisions of option-(g). At the initial hearing on the petition in March of 2013, the California Department of Forestry (CAL FIRE) acknowledged the outdated nature of option-(g). Representatives of CAL FIRE testified that in light of the fact that option-(g) was understood to be inadequate, CAL FIRE has since developed an enhanced review and approval process above and beyond that prescribed in the FPRs it dubbed “g-plus.”
However, the so-called “g-plus” methodology employed by CAL FIRE has never been fully described, either to the Board or to the public, and it has never been subject to any type of formal rulemaking as prescribed by the state Administrative Procedures Act (APA).
The lack of transparency in the review and approval process for Timber Harvest Plans (THPs) utilizing option-(g) or “g-plus” effectively constitutes what is known as an “underground regulation.” An underground regulation exists when a state body or agency employs rules, guidance, evaluation criteria, or supplements to rules that have not been subject to the formal rulemaking procedures prescribed by the APA. EPIC and its membership are adversely affected by the use of such underground regulation because it prevents our regulated members from being able to comply with rules that are unspecified, and because it prevents EPIC staff from being able to effectively engage in the conservation of the NSO as part of the THP review process.
The FPRs restrict CAL FIRE’s review and approval criteria for THPs to only those that have been promulgated via a formal rulemaking process. CAL FIRE’s development of the so-called “g-plus” approach has served to provide cover for landowners who continue to cling to the antiquated provisions of option-(g), most notably SPI. The use of the so-called “g-plus” methodology gives SPI a competitive advantage over other landowners choosing to comply with the most current guidance provided by the U.S. Fish and Wildlife Service regarding NSO “take” avoidance by allowing SPI to continue its practices of intensive harvesting within known NSO home ranges. The result is a landscape which is highly fragmented and homogenized, confounding the ability of the NSO and other wildlife to feed, breed, and migrate.
EPIC’s petition to challenge implementation of the so-called “g-plus” approach is designed to shed transparency on the review and approval process for THPs that may harm the NSO and its habitat, while continuing to challenge the outdated and inadequate provisions of option-(g). EPIC is dedicated to improving forest management in the range of the NSO to allow for the protection, enhancement and restoration of high-quality connected habitats across the landscape.