JHP LLC v. Japp



















Filed 4/19/13 JHP LLC v. Japp CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
FIVE




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JHP LLC, Plaintiff and Appellant, v. CARY JAPP et al., Defendants and Respondents.

A132977 (Del Norte County Super. Ct. No. CVPT091438)

Del
Norte County approved subdivision developments on two residentially-zoned
parcels of land owned by JHP LLC (JHP).
The California Department of Forestry and Fire Protection (Department)
identified those parcels as timberland under the Z’berg-Nejedly Forest Practice
Act of 1973 (Pub. Resources Code, § 4511 et seq.href="#_ftn1" name="_ftnref1" title="">[1];
hereafter Forest Practice Act) and required JHP to apply for timberland
conversion permits (or exemptions from the permit requirement) and for approval
of timber harvest plans (THP’s) to cut or remove trees from the parcels. The Department also undertook an
environmental review as part of the THP approval process as to one of the
parcels, even though the county had already conducted an environmental review
of the underlying subdivision project pursuant to the href="http://www.fearnotlaw.com/">California Environmental Quality Act
(CEQA), section 21000 et seq.

JHP
petitioned for a writ of mandate in the trial court alleging respondents
wrongfully classified JHP’s parcels as timberland and required duplicative
environmental review. JHP first argues
the parcels cannot be classified as timberland under the Forest Practice Act,
because they have been locally zoned residential (citing Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th
1139 (Big Creek/Santa Cruz) [local
zoning may render land not available for growing a crop of trees and thus not
timberland as defined by the Forest Practice Act]). The trial court granted judgment on the
pleadings to the Department on this issue, and we affirm. Assuming that local land use regulation could
render land not available for growing a crop of trees, as suggested in >Big Creek/Santa Cruz, JHP has not pled
facts sufficient to show that the Del Norte County land use regulations have
done so. Moreover, the county’s approval
of the specific subdivision development projects on JHP’s parcels do >not render the parcels nontimberland
because the Forest Practice Act expressly grants the Department jurisdiction
over conversions of timberland to nontimberland use.

JHP
also argues the Department’s environmental review as part the THP process is
duplicative of the county CEQA review of the underlying subdivision project and
thus violates section 21166, which restricts subsequent or supplemental
environmental reviews. The trial court
granted judgment on the pleadings in favor of the Department on this issue as
well. We reverse. We find that JHP’s claim cannot be resolved
without development of a factual record.

I. Statutory
Framework

Timberland
use in California is governed principally by the Forest Practice Act and the
California Timberland Productivity Act of 1982 (Gov. Code, § 51100 et
seq.; hereafter Timberland Productivity Act).
(See generally, Big Creek/Santa
Cruz, supra, 38 Cal.4th at pp. 1146–1149.) Although this case directly implicates only
the Forest Practice Act, it is helpful to briefly review the Timberland
Productivity Act in order to understand the overall href="http://www.mcmillanlaw.com/">statutory scheme.

A. Timberland
Productivity Act

The
Timberland Productivity Act and its predecessor legislation establishes a procedure
to designate certain land parcels timberland production zones (TPZ’s; formerly
known as timberland preserve zones).
(Gov. Code, § 51100 et seq.; Stats. 1976, ch. 176, § 4.5,
p. 305.) The purpose of
establishing TPZ’s is to ensure an optimal supply of timberland in the state
for commercial uses.href="#_ftn2"
name="_ftnref2" title="">[2] (Gov. Code, §§ 51101–51102.) Consistent with this purpose, timberland is
defined in the Timberland Productivity Act as land that is “>devoted to and used for growing and
harvesting timber . . . and which is capable of growing an average
annual volume of wood fiber of at least 15 cubic feet per acre.” (Id.
at § 51104, subd. (f), italics added.) That is, timberland is defined by the
parcel’s actual use and commercial capacity.

Soon
after the original legislation was enacted in 1976, each county was required to
identify parcels within its borders for which, in the county’s assessment,
“growing and harvesting timber [was] the highest and best use of the
land.” (Gov. Code, § 51110,
subd. (a).) Those parcels had to be
zoned TPZ unless, following a public hearing process, the county revised its
assessment of the parcels’ best use or the property owners contested the
county’s assessment. (>Id. at § 51112,
subd. (a).) All remaining
timberlands had to be zoned TPZ unless the county found it was in the public
interest to exclude them from the zones.
(Id. at § 51112,
subds. (b), (c).) Nontimberland
parcels could be zoned TPZ if the owners presented a feasible plan to grow and
harvest timber on the parcels (i.e., showed they intended to >use the land for timber
harvesting). (Id. at § 51113.)
TPZ-zoned parcels can be rezoned to nontimberland use under certain
conditions, either after a 10-year waiting period (id. at §§ 51120–51121) or in certain circumstances immediately
(id. at §§ 51130–51134). The act provides that the “growing and
harvesting of timber on [TPZ] parcels shall be regulated solely pursuant to
state statutes and regulations.” (>Id. at § 51115.) Nothing in the record before us shows, and
the parties do not contend, that the parcels at issue here have ever been zoned
TPZ.

B. Forest
Practice Act

The
purpose of the Forest Practice Act is to regulate the use of timberlands to
ensure their productivity while also “giving consideration to values relating
to sequestration of carbon dioxide, recreation, watershed, wildlife, range and
forage, fisheries, regional economic vitality, employment, and aesthetic
enjoyment.” (§ 4513; see also
§ 4514, subd. (c).) These
purposes are accomplished by regulating timber operations during industrial
timber harvests (§§ 4581–4592), management of nonindustrial timberlands
(§§ 4593–4594.7), and conversion of timberlands to other uses
(§§ 4621–4628).

Consistent
with its purposes, the Forest Practice Act defines timberlands more broadly
than does the Timberland Productivity Act and thus has a broader
application. Under the Forest Practice
Act (with exceptions not relevant here), timberland is land that “is >available for, and capable of, growing a
crop of trees of a commercial species used to produce lumber and other forest
products . . . .”
(§ 4526, italics added; see also FP Rules, rule 895.1
[defining timberland by reference to § 4526].) That is, the Forest Practice Act defines land
as timberland according to its potential
for timber growing.

The
Forest Practice Act regulates the use of timberlands primarily by requiring
THP’s before any timber operations occur.
(§ 4581.) Timber operations
are defined as “the cutting or removal, or both, of timber or other solid wood
forest products . . . from timberlands for commercial purposes,
together with . . . incidental work . . . .” (§ 4527, subd. (a)(1); see also FP
Rules, rule 895.1 [defining timber operations by reference to
§ 4527].) Commercial purposes are
defined as “(A) the cutting or removal of trees that are processed into
logs, lumber, or other wood products and offered for sale, barter, exchange, or
trade, or (B) the cutting or removal of trees or other forest products
during the conversion of timberlands to land uses other than the growing of
timber that are subject to Section 4621 [(requiring an application for a
conversion permit)] . . . .”
(§ 4527, subd. (a)(2).)
Timber operations are exclusively regulated by the Department, except
that counties may regulate timber operations on non-TPZ parcels of less than
three acres. (§ 4516.5,
subds. (d), (f).)

The
Forest Practice Rules define timberland conversion as “transforming timberland
to a nontimber growing use through timber operations where: [¶] (A) Future timber harvests will be
prevented or infeasible because of land occupancy and activities thereon; or
[¶] (B) Stocking requirements of the applicable district forest practice
rules will not be met within five years after completion of timber operations;
or [¶] (C) There is a clear intent to divide timberland into ownerships of
less than three acres (1.214 ha.).” (FP
Rules, rule 1100(g)(1).) The
Department regulates timberland conversions through permit and THP
requirements. No conversion operations
may take place until a timberland conversion permit is issued and recorded,
unless an exemption applies.
(§§ 4621, subd. (a), 4627; FP Rules, rules 1102, 1103,
1103.1(a), 1104.) THP’s are also
generally required for removal of trees during timberland conversions. (§ 4622 [“[e]xcept as provided in
Section 4584, all timber shall be cut pursuant to an approved conversion
pursuant to Section 4581”]; FP Rules, rules 1103.1(b), 1106.2; see
§ 4625 [approval of conversion permit “authorize[es] the applicant to cut
and remove any and all trees, provided that [the applicant] otherwise complies
with this chapter”].)

One
exemption from the conversion permit requirement is for subdivision development
of non-TPZ timberlands. (§ 4628,
subd. (b); FP Rules, rules 1104, 1104.2.) For the exemption to apply, local authorities
must have approved a tentative subdivision map and granted required use permits
and other approvals for the development, and the property owner must have filed
a “Notice of Exemption from Timberland Conversion Permit for Subdivision” with
the Department. (FP Rules, rule 1104.2,
subds. (a)–(c).) Although a
timberland conversion permit is then not required, the property owner must still
comply with the THP requirement if timber operations are planned. (FP Rules, rule 1104.2(d).)

C. Big
Creek/Santa Cruz

In
Big Creek/Santa Cruz, the Supreme
Court stated that local land use regulation could possibly make land not
available for timber growing within the meaning of the Forest Practice Act
definition of timberland. (>Big Creek/Santa Cruz, supra, 38 Cal.4th
at p. 1155.) The issue before the
court was not whether certain land parcels were timberland under the Forest
Practice Act; the issue was whether county land use regulations that restricted
timber harvesting in certain areas violated section 4516.5,
subdivision (d) (section 4516.5(d)), which prohibits counties from
regulating the conduct of timber operations.
(Big Creek/Santa Cruz, at
pp. 1145–1147.) The court held that
section 4516.5(d) barred counties from regulating how timber operations are conducted, but not where they are conducted. In
reaching this conclusion, the court observed that several features of the state
forestry statutory scheme implicitly recognized that counties retained their
traditional zoning powers except where expressly preempted. (Big
Creek/Santa Cruz, at pp. 1151, 1153–1154, 1162.) As one part of this statutory interpretation
analysis, the court reasoned that the lumber company’s contrary reading of
section 4516.5(d) would improperly render certain language in the Forest
Practice Act’s definition of timberland surplusage: “ ‘[T]imberland’ means ‘land
. . . which is available for, and capable of, growing a crop of trees
. . .’ [(§ 4526)]. The
phrase ‘available for’ would be superfluous if the definition were read to
include any land that is capable of
growing qualified trees, but that is what plaintiffs implicitly urge by
suggesting that section 4516.5(d) displaces counties’ traditional power to
declare which parcels among all those capable of growing trees are available
for timbering.” (Big Creek/Santa Cruz, at p. 1155.)

JHP
and amici curiaehref="#_ftn3" name="_ftnref3"
title="">[3] rely on this passage to
argue that Del Norte County’s land use regulations render JHP’s parcels
nontimberland as a matter of law.

II. Procedural
Background

A. The
Petition

JHP
filed a traditional mandamus action pursuant to Code of Civil Procedure
section 1085 against three employees of the Department, alleging they
failed to carry out certain ministerial duties with respect to the two parcels
of JHP property at issue here.

The
petition states that JHP owns property known as the “Burtschell Subdivision”
(Burtschell Parcel)href="#_ftn4" name="_ftnref4"
title="">[4] in Del Norte County. The Burtschell Parcel has a general plan
designation of “Rural Residential” and a zoning designation of “Rural
Residential Agriculture” with a minimum two-acre lot size. The petition further alleges, “Commercial
logging is neither a principally permitted nor a use permitted with a
conditional use permit in this zone.”
The county general plan, which was adopted in January 2003, sets
land planning goals that include inter alia
conservation of forest resources and housing development. In September 2006, the county planning
commission approved a subdivision development on the property following “a full
[CEQA] environmental review.”

JHP
also alleges that it owns property known as the “Bay Meadows Subdivision” (Bay
Meadows Parcel; jointly with the Burtschell Parcel, JHP Parcels)href="#_ftn5" name="_ftnref5" title="">[5] in
Del Norte County. The Bay Meadows Parcel
has a general plan designation of “Suburban Residential with
2 units/acre. The Zoning
Designation is Planned Community (PC) – Coastal. Commercial logging is neither a principally
permitted nor a use permitted with a conditional use permit in the zone.” In October 2008, the county planning
commission approved a subdivision development on the property following “a full
CEQA environmental review” and California Coastal Commission approval.

JHP
contends that Department employees Japp and Savona impermissibly characterized
the JHP Parcels as timberland. JHP
alleges that the Forest Practice Act definition of timberland refers to land
available for (and capable of) growing timber for harvest “ ‘on a large
scale.’ ” “Given the County of Del
Norte’s general plan and zoning designations for the [JHP Parcels] for housing,
the designation of other areas for commercial timber growth[,] and the approval
of these subdivisions for housing, neither of these properties [is] >available for the growing of a
commercially harvested crop of trees because dense housing is not a use
compatible with commercial forestry.”
(Italics added.) JHP asserts that
Japp and Savona had a ministerial duty to “follow the statutory definition of
Timberlands” and not classify the JHP Parcels as timberland.

JHP
submitted a proposed THP for the Burtschell Subdivision Project (Burtschell
THP). JHP alleges that Department Deputy
Chief Markham, in her review of the Burtschell THP improperly required
duplicative environmental review, in violation of CEQA. JHP alleges that state law “prohibit[s]
. . . serial review of the project[’]s potential impacts on the
environment. Nevertheless, in proceeding
with [the Burtschell THP, Markham] has ignored these requirements,
. . . [and] matters fully and previously reviewed under prior CEQA
processes conducted by Del Norte County are impermissibly being further
reviewed” in violation of section 21166 and California Code of
Regulations, title 14, section 15162.
Moreover, the county’s 2003 adoption of its general plan included a full
CEQA review of the general plan’s potential environmental impacts. JHP alleges Markham had a mandatory duty
under state law to accept and follow the county’s prior environmental review of
the Burtschell Subdivision Project’s environmental impacts.

B. Motion
for Judgment on the Pleadings

The
Department, on behalf of the individual employee respondents, moved for
judgment on the pleadings. As to the
cause of action against Japp and Savona, the Department argued that state law
clearly establishes that local authorities cannot interfere with state
regulation of timber operations through zoning actions. (See § 4516.5(d).) Therefore, “[a]lthough the County may have
zoned the parcels for residential purposes, the parcels were, and still are,
available for and capable of growing a crop of trees until the >conversion to residential housing is >legally completed.” (Italics added.) Big
Creek/Santa Cruz was inapposite because “[i]t is the conduct of timber operations . . . that is at issue here,
not the location of permissible timber operations.” (Italics added.) The county’s alleged zoning restriction on
“commercial logging” was irrelevant because timber operations include the
cutting and removal of timber not only for sale but also for the conversion of
timberland to nontimberland uses, including residential use, and JHP had not
shown that such timber operations were prohibited. (§ 4527, subd. (a)(2).) Moreover, if residential zoning alone removed
land from Department jurisdiction, the Forest Practice Act would become
useless: “Developers would be able to
convert timberland to residential and commercial developments without scrutiny
[by the Department]. . . . This invalidates the purpose of the Forest
Practice Act to restore, enhance, and maintain the productivity of timberlands and
to give consideration to values relating to recreation, watershed, wildlife,
range and forage, and fisheries.
( . . . § 4513.)”

As
to the cause of action against Markham, the Department argued that CEQA
provisions barring serial environmental review were irrelevant to its review of
a THP: “In its review of the Burtschell
[THP], [the Department] is not a lead or responsible agency because it was not
and is not responsible for carrying out or approving the environmental impact
reports for the General Plan or the development of the parcels. . . .
The review of the [THP] is governed by . . . statutes and regulations
that are separate and distinct from those that govern environmental impact
reports for general plan and residential housing development approval. Here, compliance with both CEQA and the
Forest Practice Act are required.”

JHP
made the following offer of proof with respect to its cause of action against
Markham. The county’s CEQA review of the
Burtschell Subdivision Project included review of the subdivision’s road
designs, drainage systems, lot configuration, building envelopes, sewage
disposal capacity, and effect of inducing further residential growth. The Department intended to again review these
aspects of the project as part of the THP review process. Nevertheless, only one segment of one road on
the property would be used for logging and that use would be temporary; only 12
trees would be removed from the property; trees would be removed only for the
purpose of building houses and roads; the removed trees would not be sold but
would be left in place or given away as firewood; and apart from the removal of
those 12 trees, “the volume and quality of the trees on those properties
would not justify any commercial logging.”
JHP further represented that the Burtschell THP review process had been
pending for approximately four years, as of 2011, and was still not
complete: the Department “has presided
over a totally and complete[ly] broken process, which is just what the
prohibition of serial review sought to avoid.”

C. Trial
Court Decision

The
trial court held that Big Creek/Santa
Cruz, supra, 38 Cal.4th 1139 was distinguishable because the question there
was the proper interpretation of section 4516.5(d) (the restriction on
county regulation of timber operations), not section 4526 (the definition
of timberland), and (2) the ordinances under review in >Big Creek/Santa Cruz did not convert a
particular parcel of land from a timberland use to a nontimberland use. “In the case at bar, in sharp contrast [to >Big Creek/Santa Cruz], [JHP]’s property
has historically been timberland, and trees have been present and available for
harvest. Indeed, trees must be harvested
in order for [JHP] to develop the residential subdivision. [¶] . . . [¶]

“The
way to harmonize the different provisions of the [Forest Practice Act] and the
language of Big Creek[>/Santa Cruz] as they apply to the facts
of this case is to recognize that lands that have historically been zoned in
such a way as to prohibit timber operations are unavailable for timber
operations and therefore not ‘timberland.’
However timberland, such as involved in this case, that is subsequently
re-zoned for residential use that will no longer be available for timber
operations nevertheless remains subject to [Department] jurisdiction and the
requirement for a [THP] throughout the process of converting the timberland to
another land use consistent with section 4527. To apply Big
Creek[/Santa Cruz] as [JHP]
suggests in this case would not only make the conversion language of
section 4527 surplusage . . . but it would open a large
unintended void in the regulation of timber harvests. As explained above, counties cannot regulate
‘timber operations’ and presumably have no mechanisms in place similar to THPs
to regulate the process of harvesting trees not designated as timberland.
. . . [¶] To follow the logic of [JHP’s] argument would allow
counties to zone away the jurisdiction of [the Department] and open a gap in
the regulation of timber harvesting that the Legislature has not considered or
approved. Such a gap does not make sense
when considered in relation to the comprehensive regulatory scheme that the
Legislature enacted through the [Forest Practice Act]. See Industrial
Risk Insurers v. Rust Engineering Co. (1991) 232 Cal.App.3d 1038
(statute should be interpreted to effectuate apparent purpose and to harmonize
with other sections on same subject). [¶] . . . [¶]

“. . .
[JHP] has not shown any specific ministerial duty which the [Department has]
failed to perform. In this case the
court has determined that [the Department’s] interpretation of the [Forest
Practice Act] is correct, and that [it has] no duty to accept a county’s
rezoning as depriving [the Department] of jurisdiction for timber harvests during
a conversion process. [¶] . . . [¶] . . . [JHP]
cannot cure its pleading in this regard as a matter of law.”

III. Discussion

A
motion for judgment on the pleadings “is equivalent to a demurrer and is
governed by the same standard of review. All material facts that were properly pleaded
are deemed true, but not contentions, deductions, or conclusions of fact or
law. If leave to amend was not granted,
we determine whether the complaint states a cause of action and whether the
defect can reasonably be cured by amendment.
If the pleading defect can be cured, the trial court committed
reversible error. If not, we affirm. The plaintiff bears the burden of proof on
this issue. Finally, the judgment will
be affirmed if it is proper on any grounds raised in the motion even if the
court did not rely on those grounds.
[Citation.] [¶] In addition to the facts pleaded, we may consider
matters that may be judicially noticed, including a party’s admissions or
concessions which cannot reasonably be controverted. [Citation.]”
(Pang v. Beverly Hospital, Inc.
(2000) 79 Cal.App.4th 986, 989–990.)

“[A
motion for judgment on the pleadings] does not admit the truth of argumentative
allegations about the legal construction, operation, and effect of statutory
provisions; similarly, it does not admit the truth of allegations that
challenged actions are arbitrary and capricious or an abuse of discretion. [Citation.]”
(Building Industry Assn. v. Marin Mun. Water Dist. (1991) 235
Cal.App.3d 1641, 1645 (Building Industry
Assn.).)

A
writ of mandate may be issued “by any court to any inferior tribunal,
corporation, board, or person, to compel the performance of an act which the
law specially enjoins, as a duty resulting from an office, trust, or
station. . . .” (Code
Civ. Proc., § 1085, subd. (a).)
“To obtain writ relief, a petitioner must show: ‘ “(1) A clear, present and usually
ministerial duty on the part of the respondent . . . ; and
(2) a clear, present and beneficial right in the petitioner to the
performance of that duty . . . .” [Citation.]’
‘Although mandate will not lie to control a public agency’s discretion,
that is to say, force the exercise of discretion in a particular manner, it
will lie to correct abuses of discretion.
[Citation.] In determining
whether an agency has abused its discretion, the court may not substitute its
judgment for that of the agency, and if reasonable minds may disagree as to the
wisdom of the agency’s action, its determination must be upheld. [Citation.]’
[Citation.]” (Agosto v. Board
of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189
Cal.App.4th 330, 335–336; see also Building
Industry Assn., supra, 235 Cal.App.3d at pp. 1645–1646 [mandate is not
available to compel the exercise of discretion by a public body or official in
a particular manner or to reach a particular result].)

A. Japp
and Savona: Timberland Designation

The
Department insisted that JHP was required to comply with the use conversion
requirements of the Forest Practice Act for non-TPZ timberland before engaging
in timber operations, i.e., removing trees from the JHP Parcels. JHP argues Japp and Savona had a ministerial
duty to treat the JHP Parcels as nontimberland because the parcels’ zoning and
general plan designations made the lands not available for large-scale
commercial logging. The trial court held
that historical timberlands become not available for timber growing within the
meaning of the Forest Practice Act definition of timberland only when there is
an actual change in use of the land that is incompatible with timber growing,
i.e., when a conversion occurs.

1. >Trial Court Record

The
parties made factual representations in the trial court (and JHP made an offer
of proof) about the historical, current and potential uses of the JHP Parcels
and they do so again on appeal, now joined by amici curiae. Moreover, the trial court’s decision recites,
and appears at least in part to be based on, the historical use of the parcels
and the timing of the conversion process through the land use designations for
the parcels. JHP’s ministerial duty
argument, however, does not turn on the historical use of the parcels, their
actual use just prior to commencement of the subdivision development, or their
physical potential or capacity for timber growing on any particular scale. JHP argues that the local land use
designations affecting the parcels at issue here necessarily render the land
nontimberland.

To
clarify the record and the issues before us, we review the state of the trial
court record, which includes matters judicially noticed below. We find that certain facts cited in the trial
court’s decision lack foundation in the record.
We conclude, however, that these facts are ultimately not dispositive of
the appeal.

a. Historical
Use of the Parcels

The
Department asserted in the trial court that the JHP Parcels were “historical
timberland,” and the trial court recited that fact in its decision. The Department now argues it is undisputed
that the parcels are historic timberlands and this court should assume that
fact in deciding this appeal. We
conclude there is no support in the record for this finding.

The
Department asked the trial court to take judicial notice of certain parts of
the Burtschell THP. Included was a
county staff report that was prepared in connection with JHP’s application for
county approval of the Burtschell Subdivision Project. The Department quoted the staff report’s
statement that the Burtschell Parcel had “historically been logged” and argued,
“There is [therefore] no question that before the rezoning to residential this
property was ‘timberland’ and subject to the requirements of the [Forest
Practice Act].” JHP, however, opposed
the request for judicial notice and the trial court expressly declined to take
judicial notice of the THP or its attachments.

The
Department also asked the trial court to take judicial notice of a related
administrative mandamus petition (Code Civ. Proc., § 1094.5), which was
filed by Henry Westbrook, the sole member of JHP, challenging civil penalties
imposed by the Department for unauthorized timber operations on property
including the JHP Parcels (Case No. CVPT09-1441).href="#_ftn6" name="_ftnref6" title="">[6] Although less than entirely clear, it appears
the Department actually sought judicial notice of the administrative law
judge’s findings in those administrative proceedings. The Department alludes to those findings on
appeal when it writes, “To prepare the historic timberlands for residential development,
JHP undertook significant work, including building roads, excavating, clearing
and removing trees. JHP performed this
work without first obtaining permits and approvals from [the Department].” The trial court, however, implicitly denied
the Department’s request for judicial notice of this petition when it expressly
granted judicial notice only of other matters that were included in the same
request, a county ordinance and one section of the county general plan.href="#_ftn7" name="_ftnref7" title="">[7]

In
sum, JHP’s petition did not allege that its parcels were historic timberlands
and the court did not take judicial notice of any such fact. In our analysis, we cannot assume that the
JHP Parcels are historic timberlands.

b. “Recent”
Rezoning

The trial court wrote, “At
[JHP’s] request the [JHP Parcels] were recently
rezoned by the County to residential use and [JHP] intends to develop
separate subdivisions on the properties.”
(Italics added.) Citing the trial
court decision, the Department states on appeal it is factually undisputed
that, “[a]t JHP’s request, the County re-zoned the property to residential use
so that JHP could subdivide and develop the properties.” Again, JHP’s petition does not so allege and
the assertion appears unsupported by anything we can find in the record. The only dates provided in the petition for
relevant county land use actions are (1) the 2003 adoption of the
county’s current general plan; (2) the 2006 county approval of the
Burtschell Subdivision Project; and (3) the 2008 county approval of the
Bay Meadows Subdivision Project. The
trial court also took judicial notice of a county ordinance and one section of
the county general plan, but those enactments do not establish recent rezoning
of the parcels in question.href="#_ftn8"
name="_ftnref8" title="">[8] We therefore cannot assume that the JHP
Parcels were only recently rezoned for residential use.

2. >Relevance of Historical Use and Rezoning

On
appeal, JHP argues such factual disputes must be resolved, and that judgment on
the pleadings is therefore inappropriate.
JHP is correct that a motion for judgment on the pleadings, like a
demurrer “ ‘is simply not the appropriate procedure for determining the
truth of disputed facts.’
[Citation.]” (Joslin v. H.A.S.
Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) But we do not find the resolution of these
matters necessary to the questions presented on this appeal. JHP’s petition does not urge that the
Department abused its discretion in its consideration or application of the
historical facts. JHP’s pleading
position was premised on its contention that the Department had >no discretion to exercise because the JHP Parcels are not timberland as a matter
of law by virtue of local land use designations. We disagree.

3. The Forest Practice Act
Definition of Timberland

The
Forest Practice Act and Forest Practice Rules define timberland broadly. Timberland is land “which is available for,
and capable of, growing a crop of trees
of a commercial species . . . .” (§ 4526, italics added.) Commercial species are identified by
regulation. (FP Rules, rule 895.1.) A crop of trees is defined by regulation as “>any number of trees which can be
harvested commercially.” (>Ibid., italics added.) Timberland, therefore, is land that is
available for and capable of growing any number of trees of a commercial
species “which can be harvested commercially.”
No regulation defines “trees which can be harvested commercially.”

a. “Commercially”

JHP’s
petition alleges that “commercially” means “the exchange or buying and selling
of commodities on a large scale.”href="#_ftn9" name="_ftnref9" title="">[9] (Italics added.) It quotes a dictionary definition of
“commerce” (Merriam-Webster Dictionary
[as of April 19,
2013]); however, the same dictionary’s definition of “commercial” indicates
that “viewed with regard to profit” is as likely a meaning as “designed for a
large market” (id. at
[as of April 19,
2013]).

A
more relevant source of guidance for the meaning of the term “commercially” as
used in the timberland definition is the Forest Practice Act’s other uses of
similar term in similar contexts. (>People v. Burns (1997) 53 Cal.App.4th
1171, 1175 [“[i]t is presumed, in the absence of anything in the statute to the
contrary, that a repeated phrase or word in a statutory scheme is used in the
same sense throughout”].) The Forest
Practice Act defines timber operations as “the cutting or removal,> or both, of timber or other solid wood forest products . . . from
timberlands for commercial purposes,
together with all the incidental work . . . .” (§ 4527, subd. (a)(1), italics
added.) Commercial purposes are defined
as “(A) the cutting or removal of trees that are processed into logs,
lumber, or other wood products and offered for sale, barter, exchange, or
trade, or (B) the cutting or removal of trees or other forest products
during the conversion of timberlands to land uses other than the growing of
timber that are subject to Section 4621 [requiring an application for a
conversion permit] . . . .”
(§ 4527, subd. (a)(2).)
By its plain language, the first definition is not dependent on any
particular scale of operations. Any
number of trees that are cut or removed, processed into wood products, and sold
or exchanged are cut or removed for commercial purposes. Under the second definition, there need not
even be any anticipated wood product processing or sale or exchange of timber
for the cutting or removal of trees to have a commercial purpose: the commercial purpose comes from the
anticipated nontimber-growing use of the property following conversion. The Forest Practice Act definition of timber
operations, therefore, supports an interpretation of “commercially” in its
definition of timberlands to mean “for profit,” regardless of scale.href="#_ftn10" name="_ftnref10" title="">[10]

Similarly,
the regulatory definition of a crop of trees strongly indicates that large
scale operations are not required: a
crop of trees is “any number of trees
that can be harvested commercially.” (FP
Rules, rule 895.1, italics added.)

We
find additional guidance in the Legislature’s use of different language to define timberland in the Forest Practice Act
and the Timberland Productivity Act. As
noted, the Timberland Productivity Act defines timberland in part according to
a land parcel’s commercial capacity: the
parcel must be “capable of growing an average annual volume of wood fiber of at
least 15 cubic feet per acre.” (Gov.
Code, § 51104, subd. (f).) The
Legislature did not use such language in the Forest Practice Act. Instead, it adopted a standard amenable to
broad interpretation: the land need only
be “capable of growing a crop of trees of any commercial species.” (§ 4526.) As noted, the Forest Practice Rules in turn
defines a crop of trees almost as broadly as possible: “any
number of trees which can be harvested commercially.” (FP Rules, rule 895.1.) Given the expansive language used by the
Legislature and the regulation, we cannot accept JHP’s argument that
“commercially” in the Forest Practice Act definition of timberland indicates
large-scale operations. (>Campbell v. Zolin (1995) 33 Cal.App.4th
489, 497 [“[o]rdinarily, where the Legislature uses a different word or phrase
in one part of a statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that the Legislature intended
a different meaning”].)

b. “Capable
of”

JHP
and amici curiae do not expressly dispute that the JHP Parcels are capable of
growing a crop of trees of a commercial species that can be harvested
commercially. However, they make a
number of arguments suggesting it would be absurd to treat the JHP Parcels as
timberland because they bear few if any trees.
As noted ante, facts about the
current physical condition of the parcels are not properly before us. We further conclude that such facts are not
relevant to whether the parcels are capable
of (or available for) the growing
of a crop of trees.

We
understand “capable of” to refer to the physical potential of the land, i.e.,
its ability to grow such trees.
“Available for” similarly alludes to a parcel’s potential: it suggests present conditions that >allow for timber growing, even if timber
growing is not a current activity.
Neither of these terms refer to a parcel’s actual or current use. If there is doubt on this point, it is dispelled
by a comparison to the definition of timberland in the Timber Productivity Act,
which expressly turns on a parcel’s actual use.
(Gov. Code, § 51104, subd. (f) [timberland is defined in part
as land that is “devoted to and used for growing and harvesting timber”].) If the Legislature had intended timberland
under the Forest Practice Act to include only land that was actually devoted to
the growing of timber for commercial harvest, it knew how to write such a
definition. It chose not to do so. (See Campbell
v. Zolin, supra, 33 Cal.App.4th at p. 497.)

JHP
writes that “growing a commercially harvestable crop of trees on the lots in
Burtschell and Bay Meadows is factually not an available activity
. . . because of . . . [inter alia] a lack of any
significant number of trees that could be cut.”
The absence of any significant number of trees, however, does not make
land incapable of or unavailable for growing new trees, including a sufficient
number to constitute a crop of trees that can be commercially harvested.

JHP
further argues that, under the Department’s interpretation of the timberland
definition, “land containing as little as a single sapling” is timberland,
which would be absurd. “Under the
[Forest Practice Act] the [Department is] supposed to manage >actual timber growing lands to protect
and preserve them for actual timber
growing values.” (Italics added.) Similarly, amici curiae argue it would be
absurd if land that “was never re-seeded after logging and hence contains no
trees”—i.e., “barren land”—and that has been zoned residential was deemed
timberland and subject to the jurisdiction of a forestry department. We see no conflict between the purposes of
the Forest Practice Act and the broad reach of the timberland definition, which
is consistent with the act’s goal of ensuring an adequate supply of timberland,
both for harvesting and for wildlife preservation, aesthetic enjoyment,
recreational opportunities, and similar purposes. Managing the recovery of timberlands that
have been harvested is central to the statutory scheme, which expressly sets
stocking standards on logged timberlands.
(See §§ 4561, 4561.1, 4561.5, 4561.7; FP Rules,
rules 1070–1085.6.)

It
may be that the Department’s exercise of jurisdiction over land that >literally is available for and capable
of growing a crop of trees but whose preservation would not further the goals
of the statutory scheme—such as a lot in an urban environment that bears no
treeshref="#_ftn11" name="_ftnref11" title="">[11]—might
be a prejudicial abuse of the discretion in context. But that is not the case before us. JHP does not allege in its petition that the
Department abused its discretion in its exercise of jurisdiction over the JHP
Parcels based on peculiar characteristics of those parcels; rather, it alleges
the Department had a ministerial duty
to treat the parcels as nontimberland as a matter of law by virtue of the
applicable local land use regulations alone.

c. “Available
for”: Guidance from Conversion
Provisions

We now come to the crux of
the appeal: are the JHP Parcels
“available for” growing a crop of trees of a commercial species?

“Available
for” is not defined by statute or regulation.
The phrase connotes present circumstances, but offers no guidance itself
as to whether those circumstances include current local land use regulations,
actual current uses of the parcel, or other factors.

One
obvious source of guidance for the meaning of timberland (i.e., land that is
available for growing a crop of trees) is the Forest Practice Act’s description
of how timberlands are transformed into nontimberland—i.e., the conversion
provisions of the statutory scheme. As
noted ante, a Forest Practice Rule
defines timberland conversion as “transforming timberland to a nontimber
growing use through timber operations where:
[¶] (A) Future timber harvests will be prevented or infeasible
because of land occupancy and activities thereon; or [¶] (B) Stocking
requirements of the applicable district forest practice rules will not be met
within five years after completion of timber operations; or [¶] (C) There
is a clear intent to divide timberland into ownerships of less than three acres
(1.214 ha.).” (FP Rules,
rule 1100(g)(1).) In other words,
parcels are devoted to nontimber growing uses under this regulation where
(1) the actual use of the land becomes incompatible with timber
harvesting; (2) the actual use of the land prevents satisfaction of Forest
Practice Act stocking requirements, or (3) the land is subdivided into
parcels of less than three acres and the Department therefore loses its
exclusive jurisdiction over the conduct of timber operations on the land. (See § 4516.5, subd. (f).) In all of these circumstances, the change in
use of the land is such that timber harvesting on the land can no longer
reliably be regulated consistent with Forest Practice Act standards.

It
is these changes in use that impliedly convert or transform what may otherwise
be timberland into nontimberland. That
is, they render land no longer available for growing a crop of trees that can
be harvested commercially, even if the land is still literally capable of
growing a crop of trees. Lands that
cannot be restocked according to Forest Practice Act standards, for example,
might still be capable of growing a crop of trees. Thus, at least one meaning of “available for”
appears to be that the present use of
the parcel allows for growing a crop of trees.
The conversion process is triggered when that use changes and becomes
incompatible with growing such trees.
The Forest Practice Act and its regulations expressly confer
jurisdiction on the Department to regulate the conversion process. (§§ 4621–4628.) Therefore, Japp and Savona did not violate
any ministerial duty when they treated the parcels as timberlands.

d. “Available
For”: Guidance from Big Creek/Santa
Cruz

JHP
and amici curiae argue that “available for” also means the parcel must be >zoned for uses compatible with timber
growing. They rely on what is arguably
dicta in Big Creek/Santa Cruz that
says local zoning could render certain land unavailable for timber growing
within the meaning of the Forest Practice Act definition of timberland.

The
issue before the Supreme Court in Big
Creek/Santa Cruz was whether two local zoning ordinances were preempted by
the Forest Practice Act because they improperly regulated the conduct of timber
operations in violation of section 4516.5(d). (Big
Creek/Santa Cruz, supra, 38 Cal.4th at pp. 1145–1147, 1150–1151.) The local ordinances at issue restricted
timber harvestinghref="#_ftn12"
name="_ftnref12" title="">[12]
to certain zoned districts, barred harvesting in certain areas adjacent to streams
and residences, and limited the areas where helicopter operations associated
with timber harvesting could occur. (>Ibid.)
Importantly, nothing in the opinion indicates that the ordinances >prohibited (i.e., made parcels not
available for) the growing of a crop of trees of a commercial species within
the meaning of the Forest Practice Act definition of timberland. The lumber company argued that the ordinances
nevertheless violated section 4516.5(d)—which provides that counties shall
not “regulate the conduct of timber operations . . . or require the
issuance of any permit or license for those operations” except on parcels of
less than three acres—because they regulated
timber operations. (>Big Creek/Santa Cruz, at
pp. 1150–1151.) The court concluded
that section 4516.5(d) prohibits counties from regulating >how timber operations occur (“the
‘conduct’ of timber harvesting operations”), not where they occur, and held the Santa Cruz ordinances were not
preempted because they merely regulated where timber operations occurred.href="#_ftn13" name="_ftnref13" title="">[13] (Big
Creek/Santa Cruz, at pp. 1151, 1162.)

As
explained ante, the Supreme Court
observed that several features of the state forestry statutory scheme
implicitly recognize that counties retain their traditional zoning power and
reasoned that the lumber company’s reading of section 4516.5(d) would
improperly render part of the Forest Practice Act’s definition of timberland
surplusage: “ ‘[T]imberland’ means
‘land . . . which is available for, and capable of, growing a crop of
trees . . .’ [(§ 4526)].
The phrase ‘available for’ would be superfluous if the definition were
read to include any land that is
capable of growing qualified trees, but that is what plaintiffs implicitly urge
by suggesting that section 4516.5(d) displaces counties’ traditional power
to declare which parcels among all those capable of growing trees are available
for timbering.” (Big Creek/Santa Cruz, at p. 1155.)

The
quoted passage, which is the primary foundation on which JHP’s appellate
arguments rest, appears to be dicta. The
Supreme Court cited the timberland definition as merely one example of a
pattern in the statutory scheme that preserved local zoning authority to the
maximum extent compatible with the Department’s mandate to regulate timberlands
and timber operations. The timberland
definition makes no explicit reference to local zoning authority and thus was
not critical to the court’s analysis.
Nevertheless, “statements of the California Supreme Court should be
considered persuasive even if properly characterized as dictum. [Citations.]”
(Thurman v. Bayshore Transit Management, Inc. (2012) 203
Cal.App.4th 1112, 1147.) Generally
speaking, it is advisable for trial courts and intermediate appellate courts to
follow Supreme Court dicta. (Hubbard
v. Superior Court (1997) 66 Cal.App.4th 1163, 1168–1169.)

But the
Supreme Court had no occasion in Big
Creek/Santa Cruz to consider the scope of local zoning authority in the
context presented in this appeal, or the consequences of the interpretation
that JHP and amici curiae urge. As the
trial court correctly observed, such an interpretation would leave a
significant gap in the regulation of timberlands under the Forest Practice Act.href="#_ftn14" name="_ftnref14" title="">[14] A local government could rezone a forested
area as a residential zone, outlaw timber harvests in that area, and then
approve subdivision developments on the property without Department
involvement, arguing the land already became nontimberland by virtue of the
zoning and the subdivision projects were thus not transforming timberland to a
nontimber growing use.href="#_ftn15"
name="_ftnref15" title="">[15] The Supreme Court did not consider whether
the “available for” language alone in the statutory scheme grants local
governments the power unilaterally to remove land from the Department’s
jurisdiction before the land is actually converted to another use, thus
rendering the conversion provisions of the statutory scheme meaningless.

While
we think it unlikely that the high court would approve such a result, we
conclude that we need not explore or definitively resolve that issue here. JHP has not shown that the land use
designations of its parcels make the land unavailable for timber growing within
the meaning of the Forest Practice Act definition of timberland. That is, it has not shown that those land use
regulations disallow the growing of any number of trees of a commercial species
that can be harvested commercially. Most
obviously, the regulations clearly do not prohibit the cutting or removal of
trees in the process of subdivision development (which the county approved on
the JHP Parcels), which the Forest Practice Act defines as “for a commercial
purpose.” Even setting that meaning of
commercial timber growing and harvest aside, JHP has not shown that the
regulations make its land not available for timber growing within the meaning
of the timberland definition. JHP
alleges its parcels are zoned for minimum
one-half-acre or minimum two-acre
residential lots. Obviously, lots of
much greater size might exist within that zone and trees might be cut or
removed from such lots for processing and sale or exchange without substantial
interference with nearby residences.
Removal of such trees could easily fall outside the restrictions on
“commercial logging,” which are not defined in the petition. Indeed, the trial court proceedings cast
considerable doubt on the extent of those alleged restrictions. The Department alleged in its briefing that
no prohibition on timber operations (as defined in the Forest Practice Act)
existed and challenged JHP to identify the ordinance, which JHP declined to do
even though it made an offer of proof regarding other facts it believed it
could establish to prove its case. JHP
argues that other areas of the county have been designated as appropriate for
“forestry activities.” However, that
fact does not establish that lands in other land use designations are >not available for timber growing within
the meaning of the timberland definition.
Amici curiae note that the county’s general plan designates certain
parcels “timberland” and others, including the JHP Parcels, “rural
residential.”href="#_ftn16" name="_ftnref16"
title="">[16] However, the general plan’s use of the term
timberland is not necessarily coextensive with the Forest Practice Act’s
definition of timberland. Indeed, the
section of the general plan cited by amici curiae specifically acknowledges the
Department’s jurisdiction over the conversion of forestry land for purposes of
development, which presumably includes residential development and thus would
appear to be possible only in zones designated residential.

Amici
curiae argue that the Department’s interpretation of timberland would mean that
“someone living in the suburbs . . . who wants to cut down a tree in
his or her backyard to sell firewood, or even to give firewood to a neighbor in
exchange for apples from the neighbor’s apple tree, would be engaging in
‘timber operations’ and therefore [would be] subject to [the Department’s]
jurisdiction,” and implies this would be an absurd result. We are not convinced that this is either a necessary
or likely consequence of accepting our broad understanding of the timberland
definition. The primary means by which
the Department regulates the use of timberland is through its exclusive
regulation of timber operations. An
exemption to this exclusive jurisdiction applies to parcels of less than three
acres. Moreover, the Forest Practice
Rules define a timberland conversion to include subdivision of a parcel into
lots of less than three acres. This rule
certainly implies that the Department views the subdivision of property for
typical residential use as essentially taking property outside of the
Department’s areas of concern. We also
note that growing and removing immature trees for firewood and the cutting and
removal of dead, dying or diseased trees are exempt from the THP requirement. (§ 4584, subds. (b), (c).)

Finally,
amici curiae argue that recognizing Department jurisdiction over the JHP
Parcels threatens the county’s achievement of its local land use goals and
specifically threatens the county’s receipt of state funding for housing
construction. However, the mere
existence of Department jurisdiction does not impair achievement of any of
these goals or plans. The petition does
not allege that the Department has denied a THP or otherwise prevented the
development of subdivisions on the property; the petition simply alleges that
the Department is imposing procedural requirements that JHP contends it should
not have to fulfill.

e. Conclusion

In
sum, we hold that JHP has not alleged facts establishing that Japp and Savona
breached their ministerial duties when they treated the JHP Parcels as
timberland within the meaning of the Forest Practice Act.

B. Markham: Duplicative Environmental Review

JHP
and amici curiae argue that the Department’s review of the Burtschell THP violates
CEQA’s prohibition on serial environmental review. They also argue the Department should have
participated as a responsible agency in the county planning commission’s CEQA
review of JHP’s subdivision projects and cannot belatedly insist on a THP without
having done so. We conclude this issue
cannot be decided on the pleadings alone and must be remanded to the trial
court for further proceedings.

Under
CEQA, a lead agency is “the public agency which has the principal
responsibility for carrying out or approving a project which may have a
significant effect upon the environment.”
(§ 21067.) A responsible
agency is “a public agency, other than the lead agency, which has responsibility
for carrying out or approving a project” (§ 21069). Under ordinary CEQA procedures, responsible
agencies must consult with the lead agency while it performs its initial study
and prepares an environmental impact report (EIR) or negative declaration. (Cal. Code Regs., tit. 14, § 15096,
subd. (b).) Responsible agencies must
(1) recommend whether the lead agency should prepare an EIR or negative
declaration and provide reasons for the recommendation; (2) if the lead
agency prepares an EIR, identify environmental information that would be
germane to the responsible agency’s statutory responsibilities in connection
with the proposed project (which the lead agency must then include in the EIR);
and (3) comment on the adequacy of the draft EIR or negative
declaration. (Id. at § 15096, subds. (b)–(d).) If the responsible agency believes the final
EIR or negative declaration is inadequate for the responsible agency’s own use,
it must take the issue to court within 30 days of the lead agency’s filing
of a notice of determination, prepare a subsequent or supplemental EIR if permissible
under section 21166 (requiring substantial changes in project or
circumstances or significant new information; see Cal. Code Regs.,
tit. 14, §§ 15162–15164), or assume the lead agency role; otherwise,
its objections to the adequacy of the document will be deemed waived. (Id.
at § 15096, subd. (e).) When
reaching its own decision on the project, the responsible agency must
(1) consider the lead agency’s EIR or negative declaration; (2) adopt
any feasible alternatives or mitigation measures that would lessen or avoid
significant effects on the environment for the part of the project that is
subject to the responsible agency’s approval; (3) make relevant CEQA
findings; and (4) file a notice of determination. (Id.
at § 15096, subds. (f)–(i); see generally, 1 Kostka &
Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2012)
§§ 3.19–3.23, pp. 123–126.1.)

Regulation
of timber harvesting operations under the Forest Practice Act, however, is a
certified program within the meaning of CEQA section 21080.5.href="#_ftn17" name="_ftnref17" title="">[17] (Cal. Code Regs., tit. 14, § 15251,
subd. (a); Environmental Protection
Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 610–611 (>EPIC).)
Certified regulatory programs are exempt from certain CEQA requirements,
including several that set forth the duties of lead and responsible agencies.href="#_ftn18" name="_ftnref18" title="">[18]

Although
the phrase “regulation of timber harvesting operations” conceivably could
encompasses timberland conversions (which are defined as transformations of
timberland “through timber operations”), a leading practice guide on the Forest
Practice Act states that “the Secretary for Resources has not certified [the
Department’s] review and approval of [timberland conversion permits] as a
functionally equivalent program under CEQA.”
(Duggan & Mueller, Guide to the Cal. Forest Practice Act and Related
Laws (2005) p. 426 (Duggan & Mueller).) Department approval of conversion permits,
therefore, is governed by ordinary CEQA procedures, as reflected in the Forest
Practice Rules.href="#_ftn19" name="_ftnref19"
title="">[19] On the JHP Subdivision Projects, the county
planning commission apparently served as the lead agency and the Department was
a responsible agency. (See Duggan &
Mueller, at p. 426 [referring to a Department administrative manual].)

Department
approval of a THP, including a THP for conversion operations, falls within the
certified regulatory program exception to certain CEQA requirements and the THP
itself serves as an abbreviated substitute for an EIR. (Duggan & Mueller, supra, p. 446; § 21080.5, subd. (a); >EPIC, supra, 170 Cal.App.3d at
pp. 609–612; Ebbetts Pass Forest
Watch v. Department of Forestry & Fire Protection (2004)
123 Cal.App.4th 1331, 1338.) In the
THP context, the Department serves as the lead agency. (Duggan & Mueller, at p. 446.) Although the program is exempt from CEQA
provisions requiring coordination between lead and responsible agencies
(§ 21080.5, subd. (c) [exemption from §§ 21100 et seq. and 21150
et seq.]), the Forest Practice Act imposes its own similar requirements. (Duggan & Mueller, at pp. 447–448
[citing § 4582.6; FP Rules, rules 1037.3, 1037.4, 1037.8].)

In
the conversion context, therefore, the Department apparently reviews and
approves a conversion permit (if required) under ordinary CEQA procedures,
often as a responsible agency, and then separately reviews and approves a THP
for timber operations related to the conversion under the Forest Practice Act
certified regulatory program for THP’s.
JHP argues these two environmental reviews are duplicative, at least as
actually carried out by the Department if not inherently so. The duplicative review, it argues, violates
CEQA provisions that are not covered by the exemptions provided for the
certified regulatory program.
Specifically, duplicative review violates section 21166, which
provides: “When an environmental impact
report has been prepared for a project pursuant to this division, no subsequent
or supplemental environmental impact report shall be required by the lead
agency or by any responsible agency, unless one or more of the following events
occurs: [¶] (a) Substantial changes are proposed in the project which will
require major revisions of the environmental impact report. [¶]
(b) Substantial changes occur with respect to the circumstances under
which the project is being undertaken which will require major revisions in the
environmental impact report. [¶] (c) New information, which was not known
and could not have been known at the time the environmental impact report was
certified as complete, becomes available.”
“ ‘Section 21166 is intended to provide a balance against the
burdens created by the