County of Santa Cruz v. State Board of Forestry

Opinion

I

This appeal considers a challenge by appellant County of Santa Cruz (the County) to a regulation issued by respondent California State Board of

During the underlying proceedings, the County dropped altogether its challenge to the validity of Burch’s emergency notice, obviating any further discussion of it in this appeal. Thus, the focus in the trial court and on appeal is limited to the County’s argument that Rule 1052.1 is void on its face as outside the scope of authority conferred upon the Board by the Forest Practice Act.

The matter was submitted to the trial court for decision in the form of cross-motions for summary judgment. The trial court rejected the County’s argument that the Board exceeded its statutory authority in enacting Rule 1052.1. In its written order, the court stated “[t]he definition of ‘emergency’ is, by statute, left up to the State Board of Forestry, which acted within the provisions of the Forest Practice Act in expanding the definition of ‘emergency’ to include financial considerations of the timber owner.” During argument, the court made clear its belief that the Legislature, and not the judiciary, was the proper forum in which the County should seek a remedy: “This is a legislative issue. You’re talking to the wrong branch of government here.” After judgment was entered for the Department and the Board, the County timely filed a notice of appeal.

A.

The issue before us is simply whether the Board had the authority to promulgate the “financial emergency” exception contained in Rule 1052.1. We address this question de novo. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593 , 600 [ 51 Cal.Rptr.2d 897 ].) In doing so, we intimate no judgment on whether the regulation at issue was the most practical, appropriate, or environmentally

The County contends the Board, as a state administrative agency, had no legal authority to enact Rule 1052.1 without a grant of authority by the Legislature allowing a deviation from the THP process specifically based on potential financial losses by the timber owner or operator. In response, the Board claims it had the needed legislative authority to create the “financial emergency” exception which the Legislature has implicitly vested in the Board by way of the enabling statute, section 4592. In particular, the Board contends the enabling statute grants the Board broad discretionary authority with respect to defining emergencies, including the implied power to consider financial hardships affecting landowners. According to the Board, no further specific “financial emergency” authorization is required.

In reviewing the Board’s construction of section 4592, we are guided by the following principles. According to Government Code section 11342.2, “[w]henever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.”

The first of the two criteria for regulatory validity set out in Government Code section 11342.2 requires judicial construction of the claimed source of the agency’s rulemaking authority, in this case the statutory boundaries of section 4592. The task of the reviewing court in this regard has been described as “ ‘deciding] whether the [agency] reasonably interpreted the legislative mandate.’ [Citation.]” (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651 , 657 [ 128 Cal.Rptr. 881 , 547 P.2d 993 ].) As was explained in California Beer & Wine Wholesalers Assn. v. Department of Alcoholic Beverage Control (1988) 201 Cal.App.3d 100 [ 247 Cal.Rptr. 60 ], “[w]hat deference should be accorded an administrative construction of a statute itself requires a judicial construction of the limits of the claimed

The second standard set out by Government Code section 11342.2 involves assessing whether the regulation is reasonably necessary to effectuate the purpose of the statute. This receives even more deferential review, essentially requiring only reasonability by the promulgating agency. “In the review of quasi-legislative actions of administrative agencies, judicial review is limited to a determination whether the agency’s action is arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by law. [Citations.]” (International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923 , 931, fn. 7 [ 163 Cal.Rptr. 782 , 609 P.2d 1 ]; accord, California State Employees’ Assn. v. Way (1982) 135 Cal.App.3d 1059 , 1065 [ 185 Cal.Rptr. 747 ].) In considering whether the regulation is “ ‘reasonably necessary,’ ” the court will defer to the agency’s expertise and is not to superimpose its own policy judgment on the agency in the absence of an arbitrary and capricious decision. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392 , 411 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ].)

As already noted, section 4592 authorizes the immediate commencement of timber operations if a registered professional forester files an emergency notice under penalty of perjury declaring that a bona fide emergency exists requiring immediate harvest activities. It concludes with the key provision: “Those emergencies shall be defined by the board and may include, but are not limited to, the necessity to harvest to remove fire-killed or damaged timber or insect or disease-infested timber, or to undertake emergency repairs to roads.” (Italics added.)

In this case, the legislative purpose was clearly to create a flexible procedure in the case of an emergency whereby logging can proceed without having to go through the normal environmental review process. However, the Legislature declined the opportunity to define the limits of the type of emergencies which would trigger the expedited procedure authorized by section 4592. Instead, the Legislature expressly delegated this task to the

It is not surprising that the Board has been the recipient of this broad grant of authority. The drafting of detailed or specific legislation may not always be practical or desirable. Under such circumstances, it is prudent to transfer subordinate functions to an administrative agency with the day-to-day expertise and flexibility needed to promulgate legislative-type rules to implement the statute. In an area which touches as many societal interests as timber harvesting, such rules will often, of necessity, embody significant discretionary policy determinations.

The County contends that the specific examples of emergencies set out in section 4592 was intended to limit the expansive grant of authority given the Board under section 4592 to emergencies sharing the characteristics of the defined emergencies. The County frames its argument as follows: “If the Legislature had intended to leave the definition of emergency completely to [the Board’s] discretion, it would not have included any specific examples of emergencies in section 4592.” We disagree with this syllogistic interpretation of section 4592.

Section 4592 vests broad authority in the Board to promulgate such regulations as are necessary to carry out the conservation and management objectives of the Forest Practice Act. In fact, we consider the language used in section 4592 indicating “emergencies shall be defined by the board and may include, but are not limited to, . . .” to be the broadest possible grant of legitimate powers to an administrative agency. Merely because the Legislature chose to specify certain activities as examples of “emergencies” does not mean that it intended to occupy the field in setting the boundaries of the Board’s broad rulemaking authority. Indeed, to conclude otherwise would be contrary to the long-standing rule of statutory construction that “include” is a “ ‘term of enlargement rather than limitation.’ [Citations.] It has been so interpreted by the courts of this state for almost a century. . . .” (Loyola Marymount University v. Los Angeles Unified School Dist. (1996) 45 Cal.App.4th 1256 , 1262 [ 53 Cal.Rptr.2d 424 ].)

We also disagree with the County’s argument that this case is comparable to the one considered by this division in Environmental Protection Information Center v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1011 [ 50 Cal.Rptr.2d 892 ] (EPIC). In EPIC, we considered the validity of an administrative regulation issued by the Board excusing persons owning three acres or less from having to comply with the THP requirement. In contrast to the broad delegation of rulemaking authority in the instant

In the instant case, the Board was specifically charged with the responsibility of fashioning appropriate regulations implementing section 4592. Faced with the broad legislative mandate of defining the term “emergency,” the Board determined that more than one type of situation constituting an emergency is possible under the implementing legislation. This is clearly a reasonable interpretation of the statute and within the scope of the Board’s statutory duty. Had the Legislature intended that the regulations defining emergencies be limited to situations “that necessitate immediate action to protect the environment and the public health and safety,” as the County contends, it could have said so. Instead, section 4592 sets out no policies or standards restricting the Board’s administrative discretion in defining the general term “emergency.” Therefore, we conclude the first prong of Government Code section 11342.2 is met and the Board’s construction of section 4592 is legally permissible.

B.

Nevertheless, even under the broadest of statutory mandates, an administrative agency may not use its authority to alter, enlarge, subvert or impair the act being administered. (See, e.g., Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379 , 1389 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ].) As already noted, the second prong of Government Code section 11342.2 grants the reviewing court the authority to strike down administrative actions that cannot be deemed reasonably necessary to effectuate the purpose of the enabling legislation.

In this case, the County argues that the Board undercut the clear mandate of the Forest Practice Act when it used its statutory discretion to draft a regulation which takes into account potential financial losses in the conduct

All parties concede, as they must, that the Forest Practice Act requires consideration of conservation values. Nevertheless, this court does not agree with the County’s argument that conservation is the only factor the Board may consider in promulgating regulations under the Forest Practice Act. On announcing the legislation that was to become the Forest Practice Act, Assemblyperson Edwin L. Z’berg was quoted as saying: “ ‘This is a bill that recognizes the need for timber products and a healthy timber industry. But it provides for prudent and responsible management to promote conservation as well.’ ” (Comment, Regulation of Private Logging in California (1975) 5 Ecology L.Q. 139 , 153-154, fn. omitted.) These dual goals appear repeatedly throughout the legislation.

The Forest Practice Act declares the importance of forest resources, which furnish “high-quality timber, recreational opportunities, and aesthetic enjoyment while providing watershed protection and maintaining fisheries and wildlife.” (§ 4512, subd. (b).) The state’s policy is defined as “encouraging] prudent and responsible forest resource management calculated to serve the public’s need for timber and other forest products, while giving consideration to the public’s need for watershed protection, fisheries and wildlife, and recreational opportunities alike in this and future generations.” (§ 4512, subd. (c)'.) The legislative goal in enacting the Forest Practice Act is expressed as assuring the “maximum sustained production of high-quality timber products . . . while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, regional economic vitality, employment, and aesthetic enjoyment.” (§ 4513, subd. (b).)

The Board is directed to fulfill the mandate set out in sections 4512 and 4513 by adopting “forest practice rules and regulations ... to assure the continuous growing and harvesting of commercial forest tree species and to protect the soil, air, fish, and wildlife, and water resources, including, but not limited to, streams', lakes, and estuaries.” (§ 4551.) Although these statutes list economic and environmental considerations in a fashion that suggests these values are harmonious, in reality, they are often conflicting. Thus, the Forest Practice Act’s plain language envisions that the Board, in exercising its rulemaking function, will achieve a sound balance between the public interest in protecting and preserving one of California’s most precious natural resources and the private interest of those who use these resources to earn their livelihood.

We also note that since its adoption in 1973, the Legislature has never sought to amend section 4592 in a way that would withdraw or narrow the Board’s interpretation of the scope of its authority to define emergencies. (See Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999 , 1017-1019 [ 9 Cal.Rptr.2d 358 , 831 P.2d 798 ].) This absence of legislative action is pertinent. In a recent case from this division, we pointed to the Legislature’s amendment of section 4592 without substantive change as being indicative of legislative approval of the administrative interpretation of the act. (Elk County Water Dist. v. Department of Forestry & Fire Protection (1997) 53 Cal.App.4th 1 , 10-11 [ 61 Cal.Rptr.2d 536 ].)

In 1994, the Legislature amended the root source of the Board’s rulemaking authority in section 4592—the key language “include, but need not be limited to” was amended without substantive change to read “include, but are not limited to.” (Stats. 1994, ch. 746, § 4.) Significantly, Rule 1052.1, which was enacted in 1981, had then been in effect for 13 years. Certainly, by this time, the financial emergency exception set out in Rule 1052.1 was widely known and opponents of this rule were provided an opportunity to

C.

Lastly, the County argues that the emergency notice procedure, when based on alleged financial emergencies, is contrary to the broad environmental objectives of CEQA. By way of background, certified regulatory programs, such as the regulation of timber harvesting operations by the Department and the Board, remain generally subject to CEQA requirements and policies. (Sierra Club v. State Bd. of Forestry, supra, 7 Cal.4th at pp. 1230-1231.) From this, the County argues: “The financial emergency exemption contained in Rule 1052.1 creates a giant loophole for avoiding CEQA’s policies and goals.”

A variant of this argument was recently considered, and rejected, in Elk County Water Dist. v. Department of Forestry & Fire Protection, supra, 53 Cal.App.4th 1 . There, it was argued that CEQA requires preparation of an environmental review document and public notice and review even for activities declared exempt from the preparation of a THP under sections 4592 and 4585. In response, this court reasoned: “A certification which exempts timber harvesting from the EIR process and substitutes the THP process, as a functional equivalent, exempts by implication those categories of activities which the THP process itself exempts.” (53 Cal.App.4th at p. 12.) After so holding, the court indicated that the “policy plea—that the environment would be better protected by having public review and input—is appealing but addressed to the wrong forum. The existing certified program, as authorized by the Legislature, does not require it, and ‘. . . it is the board, and not the court, that establishes forest policy.’ ” (Id. at p. 14, quoting Public Resources Protection Assn. v. Department of Forestry & Fire Protection, supra, 7 Cal.4th at p. 120.)

In conclusion, we see no transgression of the Board’s delegated authority in its promulgation of Rule 1052.1, which defines “emergency” to include those conditions that will cause appreciable financial loss to the timber owner unless minimized by immediate harvesting. Rule 1052.1, which implements the language of section 4592, appears well within the authority conferred by the Legislature that “emergencies shall be defined by the board and may include, but are not limited to, the necessity to harvest to remove fire-killed or damaged timber or insect or disease-infested timber, or to

The judgment is affirmed.

Haerle, Acting P. J., and Lambden, J., concurred.

A petition for a rehearing was denied July 9, 1998, and appellant’s petition for review by the Supreme Court was denied September 2, 1998. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.