Friends of Old Trees v. Department of Forestry & Fire Protection

52 Cal. App. 4th 1383, 61 Cal. Rptr. 2d 297, 97 Daily Journal DAR 1955, 97 Cal. Daily Op. Serv. 1372, 1997 Cal. App. LEXIS 129

Opinions

Opinion

CHAMPLIN, J.

Footnotes

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By petition for writ of mandate, respondent Friends of the Old Trees (Friends) challenged the approval by appellant California Department of Forestry and Fire Protection (the Department) of a modified timber harvest plan (THP) prepared and submitted by real party in interest Bruce L. Van Alstyne (Van Alstyne). The trial court granted the writ, concluding the Department’s approval of the plan required a cumulative impacts analysis and a discussion of alternatives to the project. The Department and Van Alstyne both appeal from this ruling.¹ Although we have followed a different analytical path, we agree with the trial court that by approving the plan without the necessary information regarding cumulative impacts and project alternatives, the Department abused its discretion.

In reaching this conclusion, we announce several holdings important to judicial review of modified THP’s filed pursuant to California Code of Regulations, title 14,² sections 1051 and 1051.1. (1) Judicial review of the Department’s approval of a modified THP should proceed by administrative mandamus (Code Civ. Proc., § 1094.5), and the review should ordinarily be confined to the administrative record. (2) The automatic incorporation of mitigation measures as a prerequisite for approving a modified THP does not grant a blanket exemption from the normal requirements for drafting a legally sufficient THP. (3) In reviewing the agency’s decision that the proposed timber harvesting is unlikely to cause a significant adverse impact to the environment, the court should independently examine the administrative record to determine if there is substantial evidence to support a fair argument that the proposed timber operations will have significant individual or cumulative impact on the environment.

Facts

On March 16, 1994, Van Alstyne, through a registered professional forester, submitted to the Department a modified THP seeking approval to selectively harvest 35 acres of trees on his property located near Occidental in Sonoma County. The stand is described as a dense redwood forest with almost 100 percent crown closure. It is 90 percent redwood and 10 percent Douglas fir and hardwoods. The forest was to be selectively harvested, with approximately 20 to 25 percent of the trees over five feet in diameter to be cut. The selective harvest involves removal of individual trees growing among other trees for the purpose of providing extra room for the continued growth of the trees which are retained. The last significant harvest in the stand was 100 years ago. The next harvest is expected to be in 12 to 15 years.

Under the Z’Berg-Nejedly Forest Practice Act of 1973, hereafter Forest Practice Act (Pub. Resources Code,³ § 4511 et seq.) and its implementing regulations, hereafter Forestry Rules (Regs., § 895 et seq.), Van Alstyne’s planned logging, like all similar logging in the state, was subject to the Department’s approval of a site specific THP. (See § 4581; Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1226-1227 [32 Cal.Rptr.2d 19, 876 P.2d 505] (Sierra Club); Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 609 [216 Cal.Rptr. 502] (EPIC).) The THP preparation and approval process is the functional equivalent of the preparation of an environmental impact report (EIR) contemplated by the California Environmental Quality Act (CEQA) (§ 21000 et seq.) (EPIC, supra, at p. 611.) Van Alstyne submitted a modified THP under Regulations, sections 1051 and 1051.1. In order to file a modified THP, the plan submitter must own 100 acres or less and meet specified conditions which are designed to avoid and mitigate significant adverse environmental effects. (See Regs., § 1051, subd. (a)(l)-(16).)

The proposed logging generated significant public interest, which was demonstrated by more than 250 letters from concerned members of the public protesting the plan and seeking further information. After the Department approved Van Alstyne’s THP, Friends petitioned for a writ of mandamus. The superior court issued the writ on a finding that the Department had abused its discretion by approving the THP without an assessment of cumulative impacts or project alternatives. Van Alstyne was enjoined from harvesting trees on the property until there was approval of a THP consistent with the court’s decision.

Admission of Extra-record Evidence

Appellants contend the trial court erred in expanding the scope of the evidence it considered beyond the administrative record. The challenge is specifically directed at the trial court’s admission and reliance on five declarations written after the Department’s administrative review had been completed expressing concern that the proposed timber harvesting would deleteriously affect the local water supply. The crux of this contention is that the trial court erred in treating this matter as a Code of Civil Procedure section 1085 traditional mandamus, thereby allowing the admission of extra-record declarations prepared after the Department concluded its review.

Legal challenges to an environmental determination “made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency,” are governed by section 21168. Such actions must be brought as administrative mandamus proceedings under Code of Civil Procedure section 1094.5. ('Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567 [38 Cal.Rptr.2d 139, 888 P.2d 1268] (Western States).) Section 21168.5 applies to “any action or proceeding, other than an action or proceeding under Section 21168 . . . .” Case law establishes that actions subject to section 21168.5 must be filed as ordinary or “traditional” mandamus proceedings under Code of Civil Procedure section 1085. (Western States, supra, 9 Cal.4th at pp. 567-568; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights).)

Quasi-legislative acts are ordinarily reviewed by traditional mandate, and quasi-judicial acts are reviewed by administrative mandate. {Western States, supra, 9 Cal.4th at pp. 566-567.) “Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2 [112 Cal.Rptr. 805, 520 P.2d 29].)

Review under administrative mandamus (§ 21168) and review under traditional mandamus (§ 21168.5) share many of the same characteristics. There is no practical difference between the standards of review applied under traditional or administrative mandamus.⁴ (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375 [43 Cal.Rptr.2d 170] (Gentry).) The

remedies available remain the same. (Woods v. Superior Court (1981) 28 Cal.3d 668, 673-674 [170 Cal.Rptr. 484, 620 P.2d 1032].) The critical distinction for our purposes is the record available for review. When an agency’s quasi-judicial determination is reviewed by administrative mandamus, judicial review is generally limited to the evidence in the record of the agency proceedings. (See § 21168; Code Civ. Proc., § 1094.5, subd. (c).) By recent Supreme Court authority which worked a substantial change in the law, when an agency’s quasi-legislative decision is reviewed by traditional mandamus, judicial review is also ordinarily limited to the administrative record. (Western States, supra, 9 Cal.4th at p. 576.) However, if the action challenges a ministerial or informal administrative action and the facts are in dispute, extra-record evidence may be necessary for adequate review “because there is often little or no administrative record in such cases.” (Id. at p. 575.)

The question of whether the petition was properly one for administrative or traditional mandamus was resolved by the trial court in favor of traditional mandamus on the basis that the notice and public comment provisions of the Forestry Rules did not amount to a hearing required by law in which evidence is required to be taken as required by Code of Civil Procedure section 1094.5, subdivision (a), and section ⁵ Relying on No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79, footnote 6 [118 Cal.Rptr. 34, 529 P.2d 66] (No Oil), the trial court obviously believed that once this matter was classified as one in traditional mandamus, the record could automatically be opened for additional evidence.

However, in Western States, the court specifically disapproved of the language in No Oil relied upon by the trial court and soundly rejected this automatic approach to opening up the record for additional evidence. (Western States, supra, 9 Cal.4th at pp. 575-576.) As noted, Western States was a traditional mandamus action reviewing an administrative rulemaking body’s alleged failure to comply with CEQA. After considering CEQA as a whole, the court was “left without any doubt that the Legislature intended courts to generally consider only the administrative record in determining whether a quasi-legislative administrative decision was supported by substantial evidence.” (9 Cal.4th at p. 571.) The court went on to explain: “Were we to hold that courts could freely consider extra-record evidence in these circumstances, we would in effect transform the highly deferential substantial evidence standard of review in Public Resources Code section 21168.5 into a de novo standard, and under that standard the issue would be not whether the administrative decision was rational in light of the evidence before the agency but whether it was the wisest decision given all the available scientific data.” (Id. at p. 572.)

While Friends attempt to distinguish Western States on numerous grounds, it cannot escape the broad reasoning the Supreme Court used to support its decision. In restricting review of a quasi-legislative decision to the administrative record, the court’s overriding concern was that the consideration of extra-record evidence would empower the court to engage in independent factfinding rather than engaging in a review of the agency’s discretionary decision. Differences aside, there can be no doubt that Western States substantially weakens Friends’ position in support of the consideration of extra-record evidence in this case.

Nor are we persuaded by Friends’ argument that extra-record evidence is required to permit adequate review because the Department’s THP ruling was simply an “informal” administrative decision made as a result of a proceeding which did not require the taking of evidence or a verbatim transcript of the proceedings. (See Western States, supra, 9 Cal.4th at p. 576.) This decision was not made in a bureaucratic vacuum leaving an inadequate paper trail, as the 600-plus page administrative record demonstrates. Significantly, courts and commentators have found that purely documentary proceedings can satisfy the hearing requirement of Code of Civil Procedure section 1094.5, so long as the agency is required by law to accept and consider evidence from interested parties before making its decision. (See Poschman v. Dumke (1973) 31 Cal.App.3d 932, 938 [107 Cal.Rptr. 596], disapproved on other grounds in Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204, fn. 3 [149 Cal.Rptr. 1, 583 P.2d 744]; Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334 [136 Cal.Rptr. 421] [compilation of cases holding that a hearing within the meaning of Code of Civil Procedure section 1094.5 may be a purely documentary proceeding]; 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 1996) § 23.45, pp. 961-962; see also Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 362 [244 Cal.Rptr. 240].) It is noteworthy CEQA itself “does not require formal hearings at any stage of the environmental review process. Public comments may be restricted to written communications.” (Regs., § 15202, subd. (a).)

Because the Department’s approval of a THP provides numerous opportunities for public and agency input, and the Department is under an obligation to respond in writing to environmental concerns, we believe the Department’s THP review process fully satisfies the hearing requirement of Code of Civil Procedure section 1094.5, subdivision (a), and section 21168.⁶ While the Department is not required to hold a trial-type hearing, compliance with the legislative requirements governing the review process guarantees the views of the plan’s supporters and detractors will be sufficiently documented to permit judicial review.

Consequently, in the future, we believe courts should review the Department’s approval of a THP by administrative mandamus (Code Civ. Proc., § 1094.5) and that review should ordinarily be confined to the administrative record. We are not alone in this conclusion. In East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113 [51 Cal.Rptr.2d 299], the court recently stated: “The focus in an action for administrative mandamus is upon the application of a regulatory scheme to a specific set of facts. [Citation.] Thus, approval or disapproval by [the Department] of specific THP’s is normally challenged by way of a petition for administrative mandamus.” {Id. at p. 1121.) In another part of the opinion, the court goes on to explain “Thus in an administrative mandamus action which challenges a THP approval for chopping down all the trees on Blackacre, the approval will be supported or not by the record before the agency.” (Id. at p. 1123, italics added.)

What is the effect of the trial court’s approach in treating this matter as one under traditional mandamus and considering the extra-record evidence in rendering its decision? Despite the space in the briefs devoted to this topic and considering appellants’ impassioned arguments urging reversal, the answer is, at this stage, the issue is purely academic. We are not undertaking a review of the trial court’s findings or conclusions. Instead, “we review the matter without reference to the trial court’s actions. In mandamus actions, the trial court and appellate court perform the same function. ...” (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786 [52 Cal.Rptr.2d 466], citation omitted, italics added; Gentry, supra, 36 Cal.App.4th at pp. 1375-1376; Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335 [25 Cal.Rptr.2d 842].) In conducting our de novo review, the applicable record will be redefined and reevaluated. Thus, it is difficult to see how appellants are presently aggrieved by the trial court’s decision to admit extra-record evidence.

Overview

Since the Department vigorously objects to Friends’ frequent invocation and “misplaced reliance” on CEQA precedent, we find it necessary at the outset to summarize the well-defined relationship between the Forest Practice Act and CEQA. In EPIC, we held that, with the exception of certain specific provisions of CEQA relating to the “procedural elements” of the EIR process, “CEQA and its substantive criteria for the evaluation of a proposed project’s environmental impact apply to the timber harvesting industry, and are deemed part of the [Forest Practice Act] and the Forestry Rules.” (EPIC, supra, 170 Cal.App.3d at pp. 617, 620; see also Regs., § 15250.) The Supreme Court has recently reiterated that timber harvesting is not exempt from adhering to the broad policy goals of CEQA. To the contrary, the court held “that in approving timber harvesting plans, the [administrative body] must conform not only to the detailed and exhaustive provisions of the [Forest Practice] Act, but also to those provisions of CEQA from which it has not been specifically exempted by the Legislature.” (Sierra Club, supra, 7 Cal.4th at p. 1228, italics added.)

Significantly, the Forest Practice Act and the Forestry Rules establish a statutory and regulatory framework that, construed together with CEQA, confers on the Department the obligation to see that cumulative impacts and alternatives to the project, as well as other specified environmental information, be taken into consideration in evaluating THP’s. CEQA specifically provides that a document written in lieu of an EIR, such as a THP, and submitted to a certified regulatory agency, such as the Department, include “a description of the proposed activity with alternatives to the activity.” (§ 21080.5, subd. (d)(3)(A).) In Sierra Club, the Supreme Court stated that the THP must “include a description of the proposed activity, its alternatives, and mitigation measures to minimize any significant adverse environmental impact . . . (Sierra Club, supra, 7 Cal.4th at p. 1230, italics added.) Moreover, the forestry rules governing the preparation of THP’s require that the cumulative impact of the proposed timber harvesting be considered as a substantive criterion for evaluating the environmental impact of the proposed project. (Regs., §§ 898, 912.9.) In EPIC, we defined a cumulative effect as an assessment of “cumulative damage as a whole greater than the sum of its parts.” (EPIC, supra, 170 Cal.App.3d at p. 625.) Quoting CEQA guidelines, EPIC went on to explain that a cumulative effect is two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. (Ibid.) Echoing these principles, under the forestry rules, THP’s must include information not only about the proposed project but about “closely related past, present and reasonably foreseeable probable future projects.” (Regs., § 898.)

Nor do we agree with the Department that a narrow reading of these requirements is justified by the fact that Van Alstyne submitted a modified THP, which automatically imposes numerous mitigation measures as a condition for plan approval. (Regs., § 1051, subd. (a)(l)-(16).) While the mitigation measures incorporated into these regulations are important first steps toward accomplishing the high environmental objectives sought to be achieved by the THP review process, their implementation does not grant a blanket exemption from the normal requirements for drafting a legally sufficient THP. To the contrary, the forestry rule setting out the 15 mitigation measures that must be met as a condition for filing a modified THP ends with the following admonition: “In addition to (1)-(15) all other rules of the Board shall apply to operations specified in this section.” (Regs., § 1051, subd. (a)(16), italics added.)

This conclusion is bolstered by the parties’ responses to several issues that we ordered supplementally briefed after oral argument. The issues focused on whether the automatic incorporation of mitigation measures as a prerequisite for a modified THP’s approval should be construed as relaxing the amount of information necessary to enable the Department to properly evaluate the environmental impact of the proposed logging operation.

By supplemental briefing, the Department and Friends appear to agree that the blanket exemption for CEQA review authorized by Regulations, section 15061, subdivision (b)(3), would not be applicable to modified THP’s. That exemption applies only to activities “[wjhere it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The Department acknowledges “[i]t would be difficult to argue that any THP—even a modified THP subject to a substantial list of mandatory mitigation measures—would fall within this very limited exception.” The Department goes on to point out that as a result of the automatic “front loading” of an exhaustive list of mitigations, Regulations section 1051.1, subdivision (d), creates a rebuttable presumption that significant adverse impacts are unlikely to result from the proposed project unless “a fair argument” is raised to the contrary necessitating further environmental review. The Department persuasively reasons “[w]ere the exemption authorized by section 15061, subdivision (b)(3), made applicable, however, the opportunity to present substantial evidence necessary to establish such a fair argument would be denied. This would neither be consistent with CEQA or in the best interests of environmental protection.”

Significantly, the Department and Friends also agree that failure to raise a “fair argument” pursuant to Regulations section 1051.1, subdivision (d), does not exempt the requirement that feasible alternatives be discussed as part of a modified THP review. We accept the Department’s concession that a legally sufficient modified THP must include some consideration of feasible alternatives even if the project’s significant environmental impacts will be avoided through mitigation measures.

Finally, the Department and Friends agree that where a “fair argument” has been raised requiring the THP to undergo supplemental environmental review, the amended modified THP would once again be subject to public review and comment as required by the Forest Practice Act and the forestry rules. Consequently, with all of these issues in mind, we can say with assurance that the law governing modified THP’s, while reducing the regulatory burden on the modified THP submitter, does not allow for important environmental considerations to be swept under the rug.

Cumulative Impacts Analysis

We first consider whether the Department prejudicially abused its discretion by failing to require a cumulative impacts assessment. Because Van Alstyne proceeded under a modified THP which automatically imposed numerous mitigation measures, he was entitled to the benefit of the rebuttable presumption set out in Regulations section 1051.1, subdivision (d), that the proposed timber harvesting was “unlikely to cause a significant adverse impact to the environment.” However, “[t]his presumption of unlikely impacts shall not apply to [Modified] THP’s for which ... the Director determines in consultation with trustee or responsible agencies, or upon review of public comments that a fair argument exists that significant individual or cumulative impacts will result from timber operations. Where issues (a fair argument) are raised, the [registered professional forester] shall complete the appropriate portion of Technical Rule Addendum No. 2[⁷] and submit that information for the Director’s review.” (Italics added.) The record reflects that the Department agreed with the conclusion of Van Alstyne’s registered professional forester that no formal cumulative impacts analysis was necessary as part of the THP because “[t]he cumulative impacts assessment. . . [is] addressed in an alternative manner using the 16 specified restrictive mitigation and conditions of 14 CCR 1051(a) 1-16.”

We are confronted at the outset by what test should be applied in reviewing the Department’s decision not to require a cumulative impacts analysis. The Department argues that the agency’s decision under Regulations section 1051.1, subdivision (d), must be upheld if it is supported by substantial evidence in the administrative record. Friends argues that we should undertake an independent review of the record to determine whether there is substantial evidence in support of a fair argument that the proposed timber operations will have a significant individual or cumulative impact to the environment. By practical effect, if we endorse the Department’s view, we review the record for substantial evidence supporting the agency’s decision that the proposed timber harvesting is unlikely to cause a significant adverse impact to the environment. If we endorse Friends’ view, we review the record for substantial evidence supporting a fair argument of significant environmental effect. As the trial court noted, this appears to be an issue of first impression.

By agreement of the parties, the “fair argument” test used in this case was derived from the test used to review rulings under section 21151 of CEQA. Under this test, the agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26 Cal.Rptr.2d 231, 864 P.2d 502].) In reviewing this issue in the CEQA context, “. . . the appellate court must look to the administrative record and decide whether or not there is substantial evidence supporting a fair argument that the project may have a significant adverse impact upon the environment. If such substantial evidence exists, or reasonable inferences therefrom, preparation of an EIR is mandatory. Consideration is not to be given contrary evidence . . . .” (Citizens’ Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1168 [44 Cal.Rptr.2d 288]; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 244-245 [227 Cal.Rptr. 899]; Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002 [165 Cal.Rptr. 514].)

We conclude that the decision not to require a timber harvester to prepare a cumulative impacts analysis is governed by the same “fair argument” test as the decision not to prepare an EIR under section 21151 and not by the deferential substantial evidence standard of review advocated by the Department. While, to our knowledge, we are the first court to so hold, we note that it has been suggested that where a statutory exemption depends on whether the project will have significant environmental effects (as does Regulations section 1051.1, subdivision (d)), an independent assessment of the record is warranted in reviewing an agency’s determination that the statutory exemption applies. (See Gentry, supra, 36 Cal.App.4th at p. 1406, fn. 24; Western Mun. Water Dist. v. Superior Court (1986) 187 Cal.App.3d 1104, 1113 [232 Cal.Rptr. 359], disapproved on other grounds in Western States, supra, 9 Cal.4th at p. 570, fn. 2; but see Centinela Hospital Assn. v. City of Inglewood (1990) 225 Cal.App.3d 1586, 1601 [275 Cal.Rptr. 901].)

Therefore, the Department’s approval of the THP required a cumulative impacts analysis pursuant to Regulations section 1051.1, subdivision (d), if substantial evidence in the record supports a fair argument that significant individual or cumulative impact will result from the proposed timber operations.⁸ We have conducted a de novo review of the administrative record as the trial court’s findings on the “fair argument” issue are not dispositive. (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151 [39 Cal.Rptr.2d 54] (Stanislaus).) We have not considered any extra-record evidence submitted by any party. Both sides have vigorously argued their perspectives of the record.

In discharging its obligation to point out substantial evidence in the record supporting a fair argument that Van Alstyne’s proposed timber harvesting

would have a significant individual or cumulative impact on the environment, Friends points to numerous letters from the public, expressing concern that the proposed logging would adversely affect the supply of water available to local wells, springs and other water sources.⁹ Some individuals relied on a paper written by Steven A. Harris (Harris, Relationship of Convection Fog to Characteristics of the Vegetation of Redwood National Park (May 1987) [unpublished thesis presented to Humboldt State University]) (hereafter the Harris paper), included in the administrative record, which is a compilation of scientific research regarding the phenomenon of fog drip. Fog drip is described as a process in which trees capture moisture from fog, which then drips to the forest floor. The letters express the general concern that the proposed logging would reduce this fog drip and add to the local shortage of groundwater. The Harris paper documents precipitation in the form of fog drip within redwood forests can produce significant amounts of water to the soil depending on certain variables, including a stand’s physical characteristics and locale. While it is true, as our dissenting colleague points out, that the Harris paper did not specifically address the site under review, it nevertheless added credence to the concern repeatedly raised by the public that the proposed logging had the potential of Anther reducing groundwater that was already in short supply.

Interestingly enough, the Department placed its confidence in a study which basically reiterated the basic points made in the Harris paper. In its official response, the Department relied heavily on the Keppeler study (Keppeler & Ziemer, Logging Effects on Streamflow: Water Yield and Summer Low Flows at Caspar Creek in Northwestern California (July 1990) 25 Water Resources Research 1669) for the proposition that logging ordinarily increases the water supply by eliminating trees and reducing evapotranspiration. But the Keppeler study itself acknowledges an “important contradiction in the pattern of increased flows after logging” in areas with a high frequency of fog and discusses various studies which have attributed reduced water flows after logging to the reduction of fog drip. (P. 1670.) The Keppeler study indicates that “[t]hese results suggest that by the elimination of fog drip through the removal of forest vegetation, anticipated enhancement of summer flows may not be realized in areas where fog occurrence is a frequent source of significant moisture.” (Ibid.) The Keppeler study goes on to cite four other studies in support of the following proposition: “The occurrence of fog and its role in influencing moisture conditions in coastal California and Oregon has been well documented, leading support to the hypothesis that significant amounts of moisture can be delivered in areas with a high frequency of advected fog.” (Ibid.) In sum, the Keppeler study—which was relied upon by the Department as hoped-for support for its position—provides substantial evidence in support of the fair argument raised by the public.

Dr. Daniel E. Wickham appeared at one of the review team meetings.¹⁰ His comments were transcribed and appear in the administrative record. Because his views are important to our decision on this issue, we set them out in some detail. After citing the Harris paper and noting that the proposed harvesting was in an area that suffers from documented water scarcity, Dr. Wickham went on to indicate that “throughout all of the research that has been done here and that can be very specifically looked at in written testimony, it’s very, very clear that the contribution of water through fog drip in redwood locations to the soil moistur[e] ranges anywhere from significant to spectacular, according to most of the actual written research. In redwood, the ¿ip ranges anywhere from about 1 1/2 inches per month to 6 1/2 inches per month in these areas as contributing to the soil. The issue here, this particular stand, because it is near the ocean, it is likely to be exposed to significantly more fog than most other stands further inland. It also consists of very, very tall and large trees which are the predominant ones that act to condense moisture from the fog. The cutting of those large trees could impact that water table very significantly and for them to go ahead on the assumption that it won’t or on the notion that some general research has shown that it’s a controversial topic, it’s really necessary for a timber harvest plan to go forward with an actual specific study of that particular grove to see exactly what the condition is, because it’s a water scarce area.” He expressed a concern that the present harvesting plan, in combination with other surrounding land use activities, including a vineyard, would cumulatively impact the water table.

Dan E. Steimle, a property owner near the grove of trees intended for harvest, wrote to the Department expressing his concern that the proposed logging would adversely effect “. . . the watershed and the availability of ground water serving the wells that support the various homes and home sites in the area.” He attached a 13-page report on the water conditions in the area prepared by a geologist which assertedly demonstrated “a correlation between the producing wells and the grove of trees intended for harvest.” Furthermore, he noted that “from the reading of the report, there may also be a correlation between the grove of trees and the sub ground structure that supports the producing wells.” He concluded with this observation: “While not conclusive in its own right, this information should be given serious consideration in the determination of the proposed harvest and its impact that could be felt on what is already a scarce water table.”

Ernest L. Carpenter, a member of the Sonoma County Board of Supervisors, sent a letter to the Department outlining numerous concerns which had been brought to his attention by his constituents. He indicated that the “neighbors have raised the issue of the impact of this plan upon the watershed and their respective water supplies.” He goes on to state: “Although I have no direct personal knowledge of these interrelationships, it is a water scarce area and there is not enough water at this time to serve all residents, agricultural operations, and residents to come.” His letter concludes with the following request, “Please answer to the satisfaction of the neighbors the impact of this timber harvest plan upon water availability.”

The dissent believes any fair argument raised by the public can be dismissed as speculative and unfounded when viewed against the Department’s “site specific, scientifically based evidence that shows this modified THP would not adversely affect the water supply . . . .” (Cone. & dis. opn., post, at p. 1412.) The dissent then quotes portions of the modified THP proclaiming that the proposed timber harvest would not significantly affect the water supply. These conclusory statements, unsupported by empirical or explanatory information, are wholly insufficient to allow the public to intelligently assess the impact of the proposed logging on the area’s water table.

In any event, the most glaring omission in the THP’s analysis of the water supply issue was analyzing the project in a vacuum and failing to consider the impact of the proposed timber harvesting on the local water supply when viewed in combination with other known or foreseeable water-consuming activities nearby. It is well documented that the project area suffers from water scarcity. The grove is on a coastal ridge where community wells are not supported by a large, general aquifer; instead, water is gathered in localized pockets. Numerous members of the public wrote letters to the Department expressing the generalized fear that the proposed timber harvesting, when considered in conjunction with other nearby activities, would only serve to further deplete the local water supply. The modified THP did not acknowledge, let alone discuss, the fact that immediately adjacent to the grove is a heavily irrigated vineyard and a residential subdivision which has already suffered from serious water shortages. Nor did it consider how the local water table would be affected by Van Alstyne’s plan to log the grove again in 10 to 15 years.

As was explained in Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 462 [246 Cal.Rptr. 82], the Department “must consider all significant environmental impacts . . . regardless whether those impacts may be expected to fall on or off the logging site, and regardless whether those impacts would be attributable solely to activities described in the timber harvesting plan or to those activities in combination with other circumstances including but not necessarily limited to other past, present, and reasonably expectable future activities in the relevant area." (Italics added.) In other words, as the CEQA guidelines explain, cumulative impacts can result from “the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.” (Regs., § 15355, subd. (b), italics added.) The THP therefore fails to address a fundamental question—how will various land-use activities in the area surrounding the grove combine with the present plan to cumulatively affect the water supply?

Appellants contend that the general topic of cumulative impacts and the specific topic of water supply and fog drip were adequately addressed in the Department’s official written response to public comments. We first note that under the express terms of the forestry rules, the Department is not required to respond to a point raised by the public unless it first determines that the environmental issue is, in fact, significant. (Regs., § 1037.8.) The fact that the issue of water supply was addressed at length in the Department’s written response to public comment comes very close to acknowledging that the public, in fact, had raised a “fair argument” that this proposed timber harvesting might have a significant environmental impact.

In any event, it is undisputed the Department’s response was not prepared as part of the THP that was available for public comment but was only issued after the THP had been approved. (See Regs., § 1037.8.) “ ‘If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees.’ ” (Sierra Club, supra, 7 Cal.4th at p. 1229, citing Laurel Heights, supra, Al Cal.3d at p. 392.) In pursuing an approach that “releas [es] a report for public consumption that hedges on important environmental considerations while deferring a more detailed analysis to [a report] that is insulated from public review” the Department pursued a path condemned as inconsistent with the purpose of CEQA in this division’s opinion in Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1052 [263 Cal.Rptr. 104]. Certainly, the Department cannot expect the public’s access to information after the fact to substitute for the opportunity to influence the Department’s decisions before they are made.

In the end, to carry the proposition of the dissent to its logical extreme is to introduce into the law a principle not heretofore recognized by any authority, i.e., that in order to raise a fair argument, members of the public must bring forth impeccably credentialed experts who offer scientifically irrefutable, site specific information foretelling certain environmental harm without information supporting a contrary position. To the contrary, as pointed out by Stanislaus, supra, 33 Cal.App.4th at page 152, the evidence supporting a fair argument should not be equated with “overwhelming or overpowering evidence.” Nor does it have to be uncontradicted. “ ‘Substantial evidence’ [to support a fair argument] as used in [CEQA] guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Regs., § 15384, subd. (a).)

Furthermore, the CEQA guidelines provide that “[i]n marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment” the existence of a “serious public controversy over the environmental effects of a project” shall tip the balance toward full environmental review. (Regs., § 15064, subd. (h)(1).) In this case, the proposed timber harvest generated a heightened degree of public controversy, as demonstrated by the more than 250 letters from citizens and public officials raising various environmental concerns. The repeated references in these letters to the issue of water availability at the very least necessitated careful examination of this issue. When considered under this “low threshold” we believe the record contains substantial evidence on which one could base a “fair argument”—requiring the need for further analysis—that the proposed timber harvesting, even as mitigated, would have an individual or cumulative impact on the area’s water supply. (Stanislaus, supra, 33 Cal.App.4th at pp. 151-152; cf. Gentry, supra, 36 Cal.App.4th at pp. 1422-1423 [professor’s uncorroborated opinion that the project would affect groundwater in certain area and residents’ “unsubstantiated opinions and concerns” did not constitute substantial evidence supporting a fair argument of potential adverse environmental impact].)

At this juncture, it is important to emphasize that the language of Regulations section 1051.1, subdivision (d), significantly narrows the scope of the analysis of cumulative impacts required in a modified THP. That section provides “[w]here issues (a fair argument) are raised the [registered professional forester] shall complete the appropriate portion of Technical Rule Addendum No. 2 and submit that information for the Director’s review.” (Italics added.) In other words, the potential impact or impacts which must be addressed by a formal, technical cumulative impacts analysis in compliance with Rule 2 are limited to those impacts to which a fair argument based on substantial evidence has been raised.

For example, the record in our case reflects that the public raised a wide range of issues with regard to Van Alstyne’s proposed timber harvesting. However, the question presented on appeal deals solely with the propriety of the Department’s approval of Van Alstyne’s THP in the absence of a formal cumulative impacts analysis under Rule 2 after the public had raised a fair argument with respect to the effect of the proposed timber harvesting on the local water supply. Accordingly, in conducting a cumulative impacts assessment as required by Regulations section 1051.1, subdivision (d), Van Alstyne should be expected to submit the required documentation under Rule 2 solely with respect to the issue of water supply.

Project Alternatives

We next consider whether the Department prejudicially abused its discretion in failing to require a discussion of project alternatives. In EPIC, we pointed out that “[the Department] and public review of the THP prior to approval is intended to ensure that the adverse environmental effects are substantially lessened, particularly by the exploration of feasible less damaging alternatives to the proposed harvesting project.” (EPIC, supra, 170 Cal.App.3d at p. 610, italics added.)

We can find no discussion of project alternatives in the modified THP that was subject to public review.¹¹ When this deficiency was argued as one of the grounds for issuing the writ, the Department argued below that a discussion of alternatives was unnecessary because of the extensive mitigation required as a condition of proceeding under Regulations sections 1051 and 1051.1. As noted earlier, the Department has retreated from that position and has acknowledged in supplemental briefing that a legally sufficient THP must include some consideration of feasible alternatives even if the project’s significant environmental impacts will be avoided through mitigation measures. This view is in accord with that of the Supreme Court, which has made it abundantly clear that mitigation measures, even where they are expected to eliminate significant environmental effects, still cannot substitute for a discussion of project alternatives. (Laurel Heights, supra, 47 Cal.3d at pp. 400-403; see also Sierra Club, supra, 7 Cal.4th at p. 1230.)

On appeal, the Department claims that alternatives were considered because “the issue of feasible alternatives and the consideration of public comment, agency recommendations and mitigation measures are essentially inseparable . . . .” The vice of this “mulligan stew” approach to environmental document drafting is that it jumbles several important concepts, each having a different meaning and each entitled to separate consideration.

The dissent adopts the Department’s approach and essentially argues that alternatives were considered because the timber harvester completed a form on which he checked a box selecting a certain cutting method from 13 descriptions and checked another box describing the yarding system to be used in carrying out the harvesting from 6 descriptions. The dissent reasons as follows—if the timber harvester selects a clear-cut over other silvicultural methods, he must have considered the other described methods; or, if the timber harvester selects cable yarding over other yarding methods, he must have considered those other methods. The flaw in this reasoning is that the methods used or rejected in carrying out the project are not alternatives to the project. When a timber harvester elects to use one cutting method over another or one yarding method over another to avoid an adverse impact, this is a step taken in mitigation. It is not an alternative to the proposed activity. An alternative to a proposed activity is just that—a description of another activity or project that responds to the major environmental issues identified during the planning process. (§ 21080.5, subd. (d)(3)(i).)

The only true alternatives were brought forth by the public and discussed only after the THP had been approved. For instance, an alternative plan was proposed that would have preserved the larger and old-growth trees on the site but would have allowed logging to go forward. Other members of the public, including the Sierra Club, asked the Department to consider an alternative that would have allowed for interested persons, including the county open space district, to purchase the stand. These alternatives, as well as others, should have at least been considered before the plan was approved.

Disposition

The judgment of the superior court to issue a peremptory writ of mandate compelling the Department to rescind its approval of timber harvesting plan 1-94-131 SON is affirmed.

Haning, J., concurred.

Judge of the Napa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1

Van Alstyne and the Department have filed separate briefs in this matter. In arguments that are made by both Van Alstyne and the Department, they will be collectively referred to as appellants. Arguments that are advanced by a party individually will be identified by the party’s name.

2

All subsequent references to Regulations will be to the California Code of Regulations, title 14.

3

All statutory references are to the Public Resources Code unless otherwise indicated.

4

Under section 21168, the reviewing court determines “whether the act or decision is supported by substantial evidence in the light of the whole record.” By contrast, section 21168.5 provides that a reviewing court’s inquiry “shall extend only to whether there was a prejudicial abuse of discretion,” and states that “[a]buse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Despite the difference in language, courts have held that the standard of review under the two statutes is essentially the same. (Western States, supra, 9 Cal.4th at p. 573; Laurel Heights, supra, 47 Cal.3d at p. 392, fn. 5.)

5

At this juncture, it should be noted that section 4582.7, subdivision (c), requires a public hearing when a THP submitter appeals the Department’s rejection of the plan to the State Board of Forestry. In such a scenario, the hearing requirement of section 21168 is clearly met and the Board’s ultimate approval or rejection of the THP is subject to judicial review under the mandate procedure established by Code of Civil Procedure section 1094.5. (Sierra Club, supra, 7 Cal.4th at pp. 1235-1236.) The issue, in this case arises because applicants whose THP’s are initially approved by the Department, such as Van Alstyne, are not similarly entitled to a public hearing.

6

Under the terms of the Forest Practice Act, public notice of the filing of a THP is required (§ 4582.4; Regs., § 1037.1), and the plan must be made available for public review and comment (§ 4582.6). The process also provides for consultation with certain public agencies, including the Department of Fish and Game, the appropriate California regional water quality control board, and the pertinent county planning agency. (§ 4582.6; Regs., § 1037.3.) The Department must “review the public input, to consider recommendations and mitigation measures of other agencies, [and] to respond in writing to the issues raised ....’’ (§ 4582.7, subd. (a).) If the Department approves the plan, it issues a notice of approval which must include a “written response ... to significant environmental issues raised during the evaluation process,” including those raised by members of the general public. (Regs., § 1037.8.)

7

Technical Rule Addendum No. 2 (Rule 2) states that its purpose is to “guide the assessment of cumulative impacts . . . that may occur as a result of proposed timber operations,” and requires, among other things, the “evaluation of both on-site and off-site interactions of proposed project activities with the impacts of past and reasonably foreseeable future projects.” (Regs., § 912.9.)

8

We are given clear, definitive guidance to the meaning of “substantial evidence” as used in CEQA. Substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Regs., § 15384, subd. (a); see Laurel Heights, supra, 47 Cal.3d at p. 393.) Substantial evidence includes facts, reasonable assumptions based on fact, and expert opinion supported by facts. On the other hand, “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, [is not substantial evidence].” (§ 21080, subd. (e)(2).)

9

“A project will normally have a significant effect on the environment if it will . . . [substantially degrade or deplete ground water resources . . . .” (Regs., § 15000 et seq., appen. G, subd. (h).) The forestry rules define a “significant” impact on the environment to be “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, . . .” (Regs., § 895.1, italics added.)

10

The dissent denigrates Dr. Wickham’s knowledge, experience, training and education and pronounces him incompetent to render an opinion on whether the proposed timber harvest might affect the water supply. In our view, the dissent measures Dr. Wickham’s qualifications to render an opinion by standards usually reserved for witnesses at trial testifying as experts rather than for members of the public attempting to bring environmental concerns to the attention of an administrative agency. Based on the following qualifications, we believe Dr. Wickham possessed sufficient knowledge and expertise so that his comments at the review team meeting rose to the dignity of substantial evidence supporting a fair argument that the proposed timber harvesting would generate significant environmental effect.

Dr. Wickham’s declaration states that he received a Ph.D. from the zoology department of the University of California at Berkeley studying the ecology of marine ecosystems. For 18 years he was a research ecologist on the staff at the University of California, Bodega Marine Laboratory. He pursued studies on the unique role that the ocean shore plays in shaping the California coastal ecosystem. (The timber grove at the center of this controversy is located just three miles from the Pacific Ocean.) Dr. Wickham is currently licensed by the State of California as a registered environmental assessor.

Of significance to his qualifications to render an opinion on the potential effect of this timber harvest on the water supply in this coastal area of Sonoma County, Dr. Wickham has been involved in studies relating to water use issues in Sonoma County and was cofounder and served on the technical advisory group overseeing the development of the Santa Rosa Subregional Wastewater System. This position exposed him to many technologies which relate to water conservation and reuse. Dr. Wickham also has direct knowledge of the locale and physical characteristics of the grove designated for harvesting. He lives five miles from the grove and has personally visited it on several occasions.

In light of Dr. Wickham’s firsthand knowledge of the area, his expertise upon issues relating to water supply, and his involvement in Sonoma County water use issues, we believe he is qualified to assess the impact of this proposed timber harvesting on the local water supply and to render an opinion thereon.

11

Some proposed project alternatives, brought to the Department’s attention through the public review process, are discussed in the Department’s official response to public comment issued after the THP had been approved. As we have held, this after-the-fact analysis cannot fulfill the requirement that the document circulated for public review contain the necessary information regarding project alternatives. To paraphrase the court in Laurel Heights, under the Department’s view, “a project proponent would never have to discuss alternatives. It would merely respond to alternatives proposed by others. There is not even a hint in CEQA that the Legislature intended such a result.” (Laurel Heights, supra, 47 Cal.3d at p. 405.)