Friends of the Gualala River
Sonoma County Superior Court once again has ruled in favor of Friends of Gualala River (FoGR) in its lawsuit against CAL FIRE’s approval of logging of coastal floodplain redwood forest in hundreds of acres of the Wild and Scenic Gualala River. The controversial “Dogwood” timber harvest plan (THP) proposed by Gualala Redwoods Timber LLC has been opposed by public protests, petitions, and litigation since 2015.
On October 16, 2018, Judge René Chouteau concluded that the second Dogwood THP failed to meet California Environmental Quality Act (CEQA) requirements for evaluating project alternatives with less environmental impact, and for assessing cumulative environmental impacts to the river, forest and floodplain, in addition to those from the Dogwood THP itself.
FoGR, Forest Unlimited, and California Native Plant Society previously sued CAL FIRE over similar environmental review flaws in the first Dogwood THP (1-15-042), and prevailed in case SCV 259216, requiring CAL FIRE to revoke the permit to log “Dogwood” in March, 2017. The applicant, Gualala Redwoods Timber (GRT), resubmitted the logging plan with minimal corrections, and CAL FIRE again approved it over major public opposition on March 30, 2018. FoGR again sued over the same basic flaws in CAL FIRE’s environmental review process for “Dogwood II” in case SCV 262241.
In agreement with legal precedents, the Court stated in “Dogwood II” that it is “absolutely clear” that THPs must be functionally equivalent to Environmental Impact Reports (EIRs). THPs must meet the same fundamental standards of CEQA with regard to evaluation of alternatives that reduce impacts to the environment, which the Court reaffirmed is “one of the most important functions of an EIR.” The Court ruled that CAL FIRE’s position on THP requirements for alternatives analysis was incorrect, and its discussion of alternatives for Dogwood simply presented no information, analysis, or explanation of how it reached its conclusions in rejecting all alternatives as infeasible. FoGR argued that CAL FIRE uncritically accepted the prejudicial arguments of the applicant, Gualala Redwoods Timber, in rejecting alternatives without analysis.
Read more at http://gualalariver.org/forestry/floodplain-logging/sonoma-county-superior-court-rules-in-favor-of-friends-of-gualala-rivers-second-lawsuit-over-the-dogwood-floodplain-timber-harvest-plan/
Eric Biber, LEGAL PLANET
(First published October 1, 2017)
The stakes here are high. Misguided CEQA reform could undermine environmental protection throughout the state, without meaningful improvements to our housing crisis.
On Friday [September 29, 2017], the Governor signed a package of housing bills intended to help address the soaring costs of housing in many metro areas in California. Follow-up coverage of that bill package has (rightly) indicated that those bills are a drop in the bucket in terms of addressing California’s housing crisis. One theme that emerges in that coverage and also coverage of other CEQA legislation (as well as a recent op-ed by two economists) is an argument that the California Environmental Quality Act (CEQA), is a significant contributor to the housing crisis. The question is, is that really correct? The answer is fairly important if the legislature is (appropriately) going to continue looking at this issue in the next legislative session.
The main argument goes along these lines – there is a lot of regulation of housing development in California. More regulation increases the cost of supplying housing, and therefore the cost of housing. Less regulation would facilitate more housing supply, and lower costs.
It may be that overall, regulation of land-use development in California is a significant contributor to the state’s housing crisis. But CEQA is only a part of the overall regulation of California’s land-use development, as I’ve noted in an earlier post. If CEQA is a significant obstacle to housing development, then I would argue that changing CEQA in ways that minimize the loss in environmental protection and maximize the benefits in increased housing production should be our goal. But in order to determine whether changing CEQA is a prudent strategy, we need to understand in a better way how local land-use processes are affecting housing production in California.
Read more at http://legal-planet.org/2017/10/01/is-ceqa-the-problem/
Brian Ling, CEO of the Sonoma County Alliance, THE PRESS DEMOCRAT
We all love Sonoma County, but the protections we have implemented, such as growth ordinances, urban growth boundaries, community separators, the open space district and an incredibly public and intensive approval process, have led to our housing crisis of under supply, over demand and incredibly high prices (even before the fires). Our residents need to universally support the projects that are being proposed within current general plan guidelines, particularly those within transit-oriented and other priority development areas. We (NIMBYS too!)voted in these protections to support the growth of new urbanism concepts. We need to support these projects now.
Today’s housing crisis is a product of land-use decisions made over the past three decades combined with a significant increase in unnecessary and/or duplicative rules and regulations. There is no question that the October fires put an exclamation point on the housing crisis. However, it is imperative to reverse this trend of housing barriers before the community further taxes ourselves toward a solution.
The Board of Supervisors, the Santa Rosa City Council and their planning departments should be commended for implementing policies to expedite rebuilding in the fire zones and priority development areas. However, additional opportunities remain that must be applied to all development within the respective general plans, not just within the fire zones. The Sonoma County Alliance believes taking action is required to positively impact new housing opportunities.
Read more at http://www.pressdemocrat.com/opinion/8453619-181/close-to-home-break-down?sba=AAS
Tom Gogola, THE NORTH BAY BOHEMIAN
The landmark California Environmental Quality Act of 1970 was intended as a shield against construction projects that imperiled the environment. But in a case of unintended consequences, critics charge that the powerful law has been wielded as a sword by labor groups, environmentalists and neighborhood groups to defeat proposed housing developments. The result, they argue, is that a well-intentioned law has driven up the cost and lowered the supply of affordable housing in the North Bay and California at large.
In a way, this is a tale of two competing points-of-view about CEQA. In one corner, CEQA critics decry the law as a leading impediment to building transit-oriented and infill housing in the state—and especially in urban regions such as Los Angeles and the greater North Bay. That’s the gist of a recent legal study by the San Francisco law firm Holland & Knight. The analysis was published in the Hastings Environmental Law Journal.
In the other corner are supporters of CEQA who say those claims are overstated, and perhaps wildly so, and that the real driver behind the region’s struggles to deal with its affordable housing crisis, or any housing for that matter, are the local agencies (zoning boards, planning commissions) that also must sign off on any proposed development.
That’s an argument advanced in another recent report published by UC Berkeley School of Law, called “Getting It Right,” which serves as a handy counterpoint to the Holland & Knight report.
This is more than an academic debate. The discussion comes at a key moment in the North Bay, which is still reeling from last year’s devastating wildfires that destroyed more than 5,000 homes in the region, making an acute housing crisis even worse.
Read more at https://www.bohemian.com/northbay/the-sword-and-the-shield/Content?oid=6374283
Peter Baye and Rick Coates, SONOMA COUNTY GAZETTE
“The real problem isn’t going to go away until the Board of Forestry and CAL FIRE follow their own rules, including CEQA. Until they do, we are not going away, either” said Charlie Ivor, president of Friends of Gualala River. “The Gualala River floodplain forest is going to be protected according to law, no exceptions.”
The lawsuit to stop logging the Gualala River floodplain redwood forest tract in the “Dogwood” timber harvest plan (THP) is over. CAL FIRE was ordered by Sonoma County Superior Court to vacate (revoke) the Gualala Redwood Timber Company timber harvest plan on April 18, 2017. CAL FIRE finally responded to the writ sending a “Notice of Director’s Decision Vacating Approval” to GRT’s forester Art Haschak on September 7, 2017, prohibiting any further logging in the Dogwood THP area. GRT must now file a new timber harvest plan if it seeks to log some or all of the floodplain redwood forest in the vacated “Dogwood” THP.
The Dogwood THP was shut down by the Court after logging on one tributary had begun. The five miles of riparian redwood forest along the main stem of the river in the Dogwood THP area has not been logged.In March, the court also ordered CAL FIRE to “reconsider” its approval of the Dogwood THP within 150 days. The Court entered judgment against CAL FIRE on March 23, 2017, based on the agency’s failure to assess any cumulative impacts of another floodplain timber harvest plan submitted by Gualala Redwood Timber during the Dogwood timber harvest plan review period, the “German South” THP.
While environmentalist plaintiffs are celebrating their victory, and the fact that the century-old floodplain redwood forest in the Dogwood THP area will be spared for now, they remain concerned CAL FIRE has not improved or reformed its environmental reviews of floodplain forest logging. The Court ordered CAL FIRE to “reconsider” approval of the Dogwood THP, including direct, indirect, and cumulative impacts to wetlands, rare plants, floodplain forest, and listed fish and wildlife species. But after being ordered to revoke the logging permit, CAL FIRE and GRT made a minimal, nominal effort to meet this order. Rather than substantially reconsider or correct the many basic environmental flaws of the timber plan, CAL FIRE and GRT minimally complied with Judge René Chouteau’s order to “reconsider” its approval by submitting only a single supplemental page, three paragraphs long, with minor changes.
Read more at: Threat to Gualala River Dogwood Forest logging ends with court decision
Derek Moore, THE PRESS DEMOCRAT
The California Supreme Court ruled Thursday that publicly owned railroads are not exempt from the state’s bedrock environmental law, a decision hailed by environmental watchdogs on the North Coast and opponents of California’s high-speed rail project.
Scott Greacen, executive director of Friends of the Eel River, called the court ruling “vindication.”
The Arcata-based group sued the North Coast Railroad Authority in a bid to force the state-chartered agency to study the environmental impacts of running freight along a 316-mile rail line that traverses Sonoma, Mendocino and Humboldt counties and runs through the Eel River canyon.
Greacen said as a result of the Supreme Court decision, NCRA won’t be able to rebuild the line through the canyon “without taking a hard look at the environmental impacts, which has been the goal all along.”
More broadly, the court ruling could have major implications for the state’s high-speed rail project. Several court cases are pending in state courts seeking to hold the California High-Speed Rail Authority accountable for construction and operation of the service.
Read more at: California Supreme Court issues ruling in closely watched North Coast rail case | The Press Democrat
Sean Hecht, LEGAL PLANET
So SANDAG won the Supreme Court case. Nonetheless, the opinion was framed very narrowly, and reaffirms that an Environmental Impact Statement for a planning project must develop a robust analysis of greenhouse gas emissions under the plan. Here, I’ll explain why the opinion will ensure that local governments and courts seriously and rigorously consider greenhouse gas emissions when they develop plans for future growth, development, and transportation.
In May, Rick Frank posted his reflections on the oral argument in the California Supreme Court on Cleveland National Forest Association v. San Diego Association of Governments (SANDAG), and predicted that SANDAG would win the case. His prediction has proved correct with the release of the Court’s opinion last week – but SANDAG’s narrow win provides a lot to be cheer about for advocates and policymakers who want to ensure that new development and transportation planning in California helps, rather than hinders, our statewide greenhouse gas reduction efforts. [Disclosure: UCLA’s Frank G. Wells Environmental Law Clinic, through the work of my colleague Cara Horowitz and several students, filed an amicus curiae brief in this case on behalf of a group of scientists, supporting the plaintiffs.]
Several prior Legal Planet posts have covered the issues in this case (including this detailed discussion by Rick after the Court accepted the case for review, this one by Rick after the case was calendared, and this analysis by Ethan Elkind after the Court of Appeal opinion was issued) so I’ll just summarize them here briefly. The plaintiffs – who included the California Attorney General as well as multiple advocacy groups – challenged the legal adequacy of the Environmental Impact Report (EIR) for SANDAG’s 2011 regional transportation plan, a legally-mandated plan setting forth a multi-decade strategy for meeting future transportation needs in the San Diego region. At issue was the plan’s implications for future emissions of greenhouse gases, and whether the EIR did a good enough job explaining and addressing those implications. The plaintiffs, including the Attorney General, alleged that the EIR didn’t do a good enough job. They asserted that the EIR insufficiently disclosed and analyzed the plan’s inconsistency with state greenhouse gas reduction goals articulated in an executive order that required 80% reductions in greenhouse gas emissions by 2050. They also claimed that the EIR failed to adequately consider alternatives and mitigation measures to reduce future emissions.
Both the trial court and Court of Appeal agreed with the plaintiffs that the environmental review was inadequate.The Supreme Court granted review on one issue: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act?” The Court did not, however, review the Court of Appeal’s judgment that the EIR didn’t sufficiently consider mitigation or alternatives.
All the parties’ briefs are archived here, for anyone who might be interested.
Read more at: Cal. Supreme Court Upholds SANDAG CEQA | Legal Planet
Kevin McCallum, THE PRESS DEMOCRAT
An environmental law firm that helped shut down Sonoma County’s composting operation is now taking aim at efforts by Windsor and Santa Rosa to pick a new garbage company to serve their residents.
The Oakland-based firm Lozeau Drury last week sent an 83-page letter to Windsor demanding a full environmental review of the various proposals the town has received for its 10-year garbage contract.
Attorney Richard Drury, in a letter received just a few hours before the Windsor Town Council was set to meet April 19 to pick a new garbage hauler, argued the town had failed to review the impacts on air quality, greenhouse gases and neighbors of a planned facility in southwest Santa Rosa.“There are few decisions that a town can make that have more direct environmental impacts than the determination of how to handle its garbage,” Drury wrote in his letter.
The town had concluded no environmental review was needed. In light of the letter, town attorney Robin Donoghue urged a delay until the town could review it and respond appropriately.
The move drew a sharp rebuke from Councilwoman and Mayor Debra Fudge, who viewed it more as a bid to influence the town’s selection process than protect the environment.
“I saw the CEQA letter as an effort from someone associated with one of the haulers to try to blow up our process, and I’m not happy about it,” Fudge said.
Read more at: Oakland law firm demands Windsor review garbage contract proposals | The Press Democrat
Eric Biber, LEGAL PLANET
A recent controversy highlights the impacts of wine industry on native California oak woodlandsA popular San Luis Obispo county winemarker is suffering a backlash in restaurants after press reports that the winemaker bulldozed oak woodlands to expand production—possibly in violation of a county land grading ordinance.
The dispute (as this Wine Enthusiast piece makes clear) is not a novel one. There is a long history of winemakers in California converting oak woodlands to vineyards, with potentially substantial impacts on native species habitat.
Conversion of oak woodlands to agricultural use is, in fact, one of the areas where state environmental law does not provide much protection. Conversion of coniferous forests is covered by the California Forest Practices Act, which imposes regulatory requirements on conversion of timberlands to other uses. Conversion of oak woodlands to other uses besides agricultural uses requires review under the California Environmental Quality Act (CEQA) for conversion activities. Cal. Pub. Res. Code § 21083.4. CEQA requires not just a public review of the potential environmental impacts of those conversions, but may also require mitigation of those impacts. However, there is an exemption in this CEQA provision for conversion to agricultural uses.
There are two main ways in which oak woodlands might still receive some protection from conversion to agricultural uses.
First, if federally or state listed endangered animal species are present, then federal or state endangered species protections might apply. If state listed endangered plant species are present, then the habitat might also be protected from conversion—though there is some uncertainty about the scope of these protections, and whether agricultural conversions are fully covered by them. However, many oak woodlands are not habitat for any listed federal or state species.
Second, if a local government imposes some sort of discretionary restriction on land conversion—such as requiring planning commission review of conversion of oak woodlands to agricultural uses—then CEQA would apply to that review process. Of course, that depends on local governments imposing restrictions on land conversion to agricultural uses, something that varies greatly from county to county. (For instance, San Luis Obispo County apparently does not protect oak woodlands.)
Oak woodlands are an important and threatened component of the natural heritage of California—and can be habitat for a wide range of native species. Yet they have been significantly damaged by agricultural conversion, particularly for wine. California native oaks—already under attack by a rapidly expanding disease epidemic—may face even greater threats in the future. If non-medical commerce in marijuana is legalized by the voters this fall, we might see substantial expansion of marijuana cultivation at the expense of California’s oaks. It may be time for the state legislature to look at stronger protections for them.
Source: Oak woodlands and wine | Legal Planet
Bill Swindell, THE PRESS DEMOCRAT
A judge has dismissed a challenge to Sonoma County’s approval of the controversial Paul Hobbs Winery vineyard project in Sebastopol, potentially ending a long-running legal dispute between the vintner known for his luxury wines and community activists who contend the 39-acre development poses serious environmental problems.
Sonoma County Superior Court Judge Gary Nadler on April 29 dismissed the claim by the Watertrough Children’s Alliance that the county erred in approving the vineyard conversion project.
The group argued that the county should have conducted a review under the stringent California Environmental Quality Act, given that schoolchildren could be exposed to pesticides from the new vineyard. Instead, the county used its 15-year-old Vineyard Erosion and Soil Control Ordinance for its review.
The case hinged on the difference between two words. The alliance argued that the project was a “discretionary” conversion under CEQA, but Sonoma County and Hobbs argued that the decision to approve the vineyard project was more “ministerial” and should be exempt from state law.
Nadler agreed with Hobbs and the county, ruling that the county’s actions — including ordering reports, choosing a consultant, inspecting the work and ordering changes — did not demonstrate the permit approval was discretionary.
Read more via: Judge dismisses legal challenge to Paul Hobbs vineyard | The Press Democrat