Filed 12/2/14 Center for Biological Diversity v. Cal. Dept. of Forestry and Fire Protection CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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


CENTER FOR BIOLOGICAL
DIVERSITY et al.,
         Plaintiffs and Appellants,
v.
CALIFORNIA DEPARTMENT OF                                             A138914
FORESTRY AND FIRE PROTECTION
et al.,                                                              (Mendocino County Super. Ct.
         Defendants and Respondents;                                 No. SCUK-CVG-10-55593)
NORTH GUALALA WATER COMPANY
et al.
       Real Parties in Interest and
       Respondents.


         The California Department of Forestry and Fire Protection (CAL FIRE) approved
a “Nonindustrial Timber Management Plan” (NTMP) authorizing logging on
approximately 615 privately held acres of north coast redwood and Douglas fir forest
located in Mendocino County. Appellants Center for Biological Diversity, Friends of the
Gualala River, and Coast Action Network (collectively Petitioners) initiated
administrative mandamus proceedings (Code Civ. Proc., § 1094.5) seeking to set aside
CAL FIRE’s approval of the NTMP, alleging violations of the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)1 and the California

         1
             Undesignated statutory references are to the Public Resources Code.


                                                             1
Endangered Species Act (CESA; Fish & G. Code, § 2050 et seq.). Petitioners also sought
a writ of mandate (Code Civ. Proc., § 1085) and declaratory relief against the California
Department of Fish and Wildlife (DFW),2 alleging that DFW failed to fulfill its public
trust and statutory obligations by failing to object to the NTMP. The trial court denied
relief. We affirm.
                                   I.     BACKGROUND
                                  The Forest Practice Act
       Timberland use in California is governed in significant part by the Z’berg-Nejedly
Forest Practice Act of 1973 (§ 4511 et seq.; hereafter Forest Practice Act) and the Forest
Practice Rules promulgated by the State Board of Forestry (Cal. Code Regs., tit. 14,
§ 895 et seq.).3 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 in part by
management of nonindustrial timberlands. (§§ 4593–4594.7.)
       An NTMP, as provided in the Forest Practice Act, is a long-term plan for sustained
yield timber production which may be utilized by owners of less than 2500 acres of
timberland who are not primarily engaged in the manufacture of forest products.
(§ 4593.2.) The plan must be prepared by a registered professional forester (forester).4
(§ 4593.3; FP Rules, rule 895.1.) “[CAL FIRE] is the public agency initially charged


       2
           Formerly the Department of Fish and Game (Fish & G. Code, § 700).
       3
        Rule references cited as the Forest Practice Rules in text and as FP Rules
parenthetically are to title 14 of the California Code of Regulations.
       4
         A “professional forester,” is “a person who, by reason of his or her knowledge of
the natural sciences, mathematics, and the principles of forestry, acquired by forestry
education and experience, performs services, including, but not limited to, consultation,
investigation, evaluation, planning, or responsible supervision of forestry activities when
those professional services require the application of forestry principles and techniques.”
(§ 752, subd. (a).)


                                             2
with the duty of determining whether or not a proposed timber harvesting plan
incorporates feasible silvicultural systems,[5] operating methods, and procedures to
substantially lessen significant adverse impacts on the environment. ([FP Rules,
rule 898.1(c)(1)].)” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1228
(Sierra Club).) CAL FIRE serves as the “lead agency” in conduct of environmental
reviews for such projects. (FP Rules, rule 1037.5(c).) The Forest Practice Rules require
CAL FIRE to establish interdisciplinary review teams to review plans and assist it in “the
evaluation of proposed timber operations and their impacts on the environment.” (Id.,
rule 1037.5) A DFW representative is to be included “when possible.”6 (Id., rule
1037.5(a).) DFW and other members of the review team serve in an “advisory capacity”
and “assist the Director” in determining if plans conform to the Forest Practice Act and
Forest Practice Rules. (Id., rule 1037.5(b).)
       CAL FIRE’s approval of timber operations is generally subject to CEQA, but the
Forest Practice Act’s regulatory scheme has been certified for exemption from CEQA’s
requirements for preparation of an environmental impact report (EIR) before approval of
a project. (§ 21080.5; Sierra Club, supra, 7 Cal.4th at p. 1230.) The Forest Practice Act
and Forest Practice Rules together constitute a certified regulatory program under CEQA.
(Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d
604, 611.) An NTMP “functions as the equivalent of an EIR.” (Sierra Club, at p. 1230.)
“[A]s the functional equivalent of an EIR, a timber harvest plan must ‘provide public and
governmental decisionmakers with detailed information on the project’s likely effect on
the environment, describe ways of minimizing any significant impacts, point out
mitigation measures, and identify any alternatives that are less environmentally


       5
       “ ‘Silviculture’ is the theory and practice of controlling the establishment,
composition and growth of forests.” (FP Rules, rule 895.1.)
       6
        DFW, as trustee for state fish and wildlife resources, is also charged by statute
with consulting with lead and responsible agencies on CEQA projects and providing its
biological expertise in reviewing and commenting upon environmental documents and
impacts arising from project activities. (Fish & G. Code, § 1802.)


                                                3
destructive.’ [Citation.]” (Ebbetts Pass Forest Watch v. California Dept. of Forestry &
Fire Protection (2008) 43 Cal.4th 936, 943.)
                            The Bower NTMP and Unit 9 Parcel
       On October 29, 2008, real parties in interest John and Margaret Bower, Bower
Limited Partnership, and North Gualala Water Company (collectively Bower) submitted
a proposed NTMP to CAL FIRE, seeking authorization for timber harvesting activities in
an area of approximately 615 acres located adjacent to and to the north and northeast of
the town of Gualala. The plan was divided into 10 harvest units, across four CAL FIRE
planning watersheds (Roseman Creek, Big Pepperwood Creek, Doty Creek, and
Robinson Creek).7 Forest stands in the NTMP units generally range from young trees to
second and third growth redwood and Douglas fir forests, with scattered late seral8
“residual” components.
       At issue here is CAL FIRE’s approval of (and DFW’s nonobjection to) logging
activity on an approximately 17-acre section of “Unit 9,” located in the Doty Creek
Watershed.9 Unit 9 covers approximately 84 acres in total, composed primarily of
second growth redwood and Douglas fir. The portion of Unit 9 that is the focus of this
litigation was identified by DFW as “a stand embedded in Unit 9 that meets the structural
definition of Late Succession Forest Stands as defined in the [Forest Practice Rules,
rule 895.1].”10 We refer to this stand, as have the parties, as the LSFS.


       7
         The NTMP “Management Unit Description” section also identifies a “Unit 11”
to be used for “forest health, powerline corridor, fuel hazard reduction and limited timber
production.”
       8
        As described by DFW, late seral (i.e., old or mature) forest habitats “emerge over
time from the general accumulation of growth, small disturbances, natural tree mortality
and colonizing species . . . produc[ing] structural complexity . . . .”
       9
           DFW estimated the disputed portion of Unit 9 to be approximately 18 acres.
       10
          “ ‘Late succession forest stands’ means stands of dominant and predominant
trees that meet the criteria of [California Wildlife Habitat Relationships] class 5M, 5D, or
6 with an open, moderate or dense canopy closure classification, often with multiple
canopy layers, and are at least 20 acres in size. Functional characteristics of late
succession forests include large decadent trees, snags, and large down logs.” (FP Rules,

                                             4
                                  The Marbled Murrelet
       It appears largely undisputed that the LSFS in its present condition is potentially a
“functional nesting habitat”11 for the marbled murrelet, a small seabird which is federally
listed as a threatened species and classified under CESA as an endangered species. The
murrelet is found off California coastal waters from Del Norte to Santa Cruz Counties “in
marine and pelagic habitats and nests in coastal coniferous forests,” and requires “dense
old growth or mature forests of redwood and Douglas-fir” and “[l]arge diameter, moss
covered or mistletoe branches that create a broad flat surface (referred to as a platform)”
for nesting and breeding. It also appears undisputed that murrelets have no known
history of actually nesting in the LSFS. As discussed post, the parties take very different
views as to the NTMP’s impact on the functionality of the murrelet habitat and on
murrelet populations generally.




rule 895.1.) DFW, and Petitioners, generally use the phrase “late seral forest” as a
descriptor for this parcel. This is not a defined term under the Forest Practice Act or
Forest Practice Rules, and the parcel does not meet the definition of “late succession
forest stands,” which applies only to stands “at least 20 acres in size.” (Ibid.) DFW
considered its own “late seral” definition “more ecological.” Bower and his forester
disputed the “late seral” characterization of the LSFS, but the NTMP nevertheless treats
the LSFS as if it were a late succession forest stand.
       11
          “ ‘Functional Nesting Habitat’ means habitat with a dominant and codominant
tree canopy closure of at least 40% and a total canopy (including dominant, codominant,
and intermediates) of at least 60%. Usually the stand is distinctly multi-layered with an
average stem diameter in dominant, codominant conifers, and hardwoods > 11[-inch
diameter at breast height]. The stand usually consists of multi-specied trees (including
hardwoods) of mixed sizes. All nests, snags, down logs, and decadent trees shall also be
considered as part of the habitat. Nesting substrates are provided by broken tops,
cavities, or platforms such as those created by a hawk or squirrel nest, mistletoe broom,
or accumulated debris. Owls are known to occasionally nest in less than optimal habitat.
Nesting areas may also be associated with topographical relief and aspect which alter
microclimates.” (FP Rules, rule 895.1.)


                                             5
                                    Procedural History
       The Bower NTMP was resubmitted to CAL FIRE in late October 2008.12
CAL FIRE, DFW and other agency personnel attended a preharvest inspection of
Bower’s property in December 2008. During that inspection, a DFW biologist
characterized certain areas in Unit 9 as “emerging” late seral forest and suggested that the
area might need to be evaluated for murrelet habitat. A preharvest inspection report,
discussing Unit 9 and murrelet habitat, was filed by CAL FIRE on December 19, 2008.
DFW recommended a murrelet consultation and requested that the perimeter of the late
seral area in Unit 9 be walked and estimated. Bower’s forester subsequently inventoried
and photographed all large trees in the area. A second preharvest inspection was
conducted by CAL FIRE, DFW, Bower and Bower’s forester in February 2009, focusing
on the large tree area. The inspection and consultation included an assessment of
“several residual old growth redwood trees and one residual old growth Douglas-fir” and
assessment of murrelet habitat. DFW submitted its preharvest inspection and murrelet
consultation reports in June 2009. The consultation report opined that suitable murrelet
habitat existed within the LSFS and proposed specific mitigation measures to avoid
“take” of murrelets pending completion of protocol surveys within the LSFS.13
       Bower’s forester submitted a response to the DFW murrelet consultation report on
August 5, 2009—identifying and mapping a total of 67 trees meeting the DFW definition
and description of late seral habitat, ranging from 25 to 106 inches DBH.14 A majority of
the 67 trees are located within a 13-acre core area of the LSFS. Bower’s forester
characterized only seven as late seral and asserted that the LSFS had only “marginal
potential for marbled murrelet occupation,” given the parcel’s small size and close
proximity to a local airport and a residential area. DFW recommended retention of

       12
       The plan was originally submitted on April l8, 2008, but returned for
noncompliance with provisions of the Forest Practice Rules.
       13
            Protocol surveys were conducted in 2010 and 2011.
       14
        DBH is “diameter at breast height,” and is a standard measurement for tree size.
(See FP Rules, rule 895.)


                                             6
39 large diameter trees (≥ 40-inch DBH) identified in and around the LSFS. A revised
NTMP submitted in November 2009, required retention of 30 out of the 67 large
diameter trees to provide structural characteristics beneficial to wildlife, with seven of
these being adjacent to, but outside the boundaries of the LSFS.15
       On December 3, 2009, the CAL FIRE review team chair recommended approval
of the revised NTMP, subject to compliance with additional mitigation measures which
were incorporated into the NTMP. These measures included replacement of fallen or
dead wildlife trees, in a two for one ratio, with other trees selected for their wildlife
value; prohibition of all group selection harvesting within the LSFS and within a 100-foot
buffer zone around the LSFS; retention of two additional trees per acre with minimum of
24 inches DBH throughout Unit 9; and imposition of a three-year harvest moratorium
within LSFS Area, to allow DFW to attempt acquisition of a conservation easement on
the LSFS.
       After close of the public comment period,16 CAL FIRE issued its “Official
Response” to public comments and approved the NTMP on December 31, 2009,
concluding that large wildlife trees were being preserved, and “species largely dependent
on late seral habitat features [would] not be adversely impacted.” DFW did not submit a
nonconcurrence. (See FP Rules, rule 1037.5(e) [“[i]f a member of the review team does
not concur with the chairperson’s recommendation to the Director, the member shall
submit in writing, within 5 days of the review team meeting and before the action
required by [rule] 1037.4, the specific reasons why the recommendation does not provide
adequate protection of the resources for which his or her agency has responsibility”].)



       15
          Seven of the trees identified for retention are potentially subject to later harvest
if a qualified wildlife biologist certifies, in a written amendment to the NTMP, that one or
more of these trees does not provide significant functional wildlife habitat, in the
aggregate with habitat opportunities provided by other permanently retained trees and the
managed stand structure.
       16
            On November 16, 2009, CAL FIRE extended the public comment period for
30 days.


                                               7
                                          The Litigation
       On February 5, 2010, Petitioners filed their “Verified Petition for Writ of
Mandate, Complaint for Declaratory Relief for Breach of Public Trust, and Request for
Injunctive Relief” (Petition). The Petition sought orders requiring CAL FIRE to set aside
approval of the NTMP, a declaration that DFW was in violation of its statutory and
public trust obligations, and an injunction prohibiting timber harvesting pursuant to the
NTMP. The matter was tried to the court on May 14, 2013.17 The court issued a
statement of decision on May 24, 2013, denying the Petition in its entirety.18 A notice of
appeal was filed on June 10, 2013. Judgment was entered on June 19, 2013. On July 2,
2013, we granted Petitioners’ request for a writ of supersedeas to stay logging activities
within the LSFS pending resolution of this appeal.
                                    II.       DISCUSSION
       Petitioners contend that CAL FIRE, in approving the NTMP, failed to comply
with the requirements of CEQA and the Forest Practice Rules. They insist that
cumulative impacts of proposed logging in the NTMP will eliminate over 90 percent of
the large trees in the LSFS, significantly reducing the overhead canopy, and rendering the
stand unsuitable for murrelet nesting. They argue that approval of the NTMP also
violates CESA by authorizing logging that would adversely modify late seral nesting
habitat essential for survival and recovery of the murrelet. Finally, they contend that
DFW violated its public trust obligations by failing to oppose the NTMP.
A.     CAL FIRE’s Approval of the NTMP
       1.     Standard of Review
       CAL FIRE’s approval of timber operations is subject to CEQA’s standard of
judicial review. (§§ 21168, 21168.5; Sierra Club, supra, 7 Cal.4th at pp. 1235–1236.)
“In reviewing an agency’s compliance with CEQA in the course of its legislative or

       17
         The parties represent that they stipulated to stay the litigation for some period to
permit settlement discussions.
       18
         Although labeled a “Tentative Decision,” the parties agree that the decision was
intended to be the final order of the court.


                                                8
quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’ [Citation.] Such an abuse 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.’ [Citations.]” (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426–427,
fns. omitted (Vineyard).) “ ‘Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed the correct
procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements”
[citation], we accord greater deference to the agency’s substantive factual conclusions.’ ”
(Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection, supra,
43 Cal.4th at p. 944.)
       Under CEQA, “substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact.” (§ 21080, subd. (e)(1).)
“Substantial evidence is defined as ‘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.’ [Citations.]”
(Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383,
1391.) A reviewing court “shall not exercise its independent judgment on the evidence
but shall only determine whether the [agency’s] act or decision is supported by
substantial evidence in light of the whole record.” (§ 21168.)19 In determining whether
an agency has prejudicially abused its discretion, “ ‘the power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the [agency’s decision].’ ” (Western
States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 571.) Our review for
substantial evidence applies a deferential standard that is satisfied if “the record contains

       19
         Petitioners frequently cite to a different administrative record compiled by the
DFW. The trial court sustained objections to this evidence. We do not consider extra-
record evidence. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th
559, 576.)


                                              9
relevant information that a reasonable mind might accept as sufficient to support the
conclusion reached.” (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009)
170 Cal.App.4th 956, 968.) The administrative determinations are presumed correct and
we indulge all reasonable inferences from the evidence supporting those determinations.
If more than one inference can be drawn from the evidence, “ ‘a reviewing court is
without power to substitute its deductions’ ” for those of the agency. (Western States
Petroleum Assn., at p. 571.) “In reviewing for substantial evidence, the reviewing court
‘may not set aside an agency’s [decision] on the ground that an opposite conclusion
would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to
weigh conflicting evidence and determine who has the better argument.’ [Citation.]”
(Vineyard, supra, 40 Cal.4th at p. 435.)
       Our task is essentially identical to that of the trial court. (American Canyon
Community United for Responsible Growth v. City of American Canyon (2006)
145 Cal.App.4th 1062, 1070.) Accordingly, “we review the agency’s actions directly and
are not bound by the trial court’s conclusions. [Citations.]” (Friends of Lagoon Valley v.
City of Vacaville (2007) 154 Cal.App.4th 807, 816–817.) In that sense appellate judicial
review under CEQA is de novo (Vineyard, supra, 40 Cal.4th at p. 427), and the burden
on appeal to establish error is the same as the burden in the trial court, i.e., on the parties
who challenge the administrative decisions (San Franciscans Upholding the Downtown
Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 674).
       2.     Sufficiency of the NTMP
       Petitioners present several challenges to the sufficiency of the NTMP as an
informational document. Petitioners first contend that the NTMP failed to adequately
assess cumulative impacts of logging in the LSFS, and that approval of the plan under
such circumstances resulted in CAL FIRE’s failure to proceed in the manner required by
law. Failure of the environmental review process to provide adequate information and
analysis constitutes a failure to proceed according to law and is an abuse of discretion
under Code of Civil Procedure section 1094.5. (Joy Road Area Forest & Watershed



                                               10
Assn. v. California Dept. of Forestry & Fire Protection (2006) 142 Cal.App.4th 656,
665.)
        Petitioners assert that the NTMP contains no analysis of how the LSFS will be
retained as functional habitat. In Petitioners’ view, the cumulative effects of proposed
logging activities “will eliminate the last remnant late seral forest in the entire 4,628 acre
Doty Creek watershed,” and that the resulting loss of this stand would mean that late seral
wildlife, such as the murrelet, could not survive or reproduce in the watershed.
Petitioners insist that the resulting forest, although retaining some large trees, will not
provide functional nesting habitat because it will no longer contain overstory canopy and
dense surrounding forest—the forest structure that allows large nesting trees to function
as habitat. They fault the NTMP for providing an inadequate description of the
environmental setting, murrelet presence within the assessment area, and importance of
the LSFS to long-term murrelet survival and recovery. Petitioners contend that these
errors in assessment of cumulative impacts are “informational in nature” in that they fail
to provide adequate information to ensure a meaningful evaluation of potentially
significant impacts of logging the LSFS. We disagree.
        The Forest Practice Rules adopt the CEQA definition of “cumulative impacts”
from related projects: “the change in the environment which results from the incremental
impact of the project when added to other closely related past, present, and reasonably
foreseeable probable future projects. Cumulative impacts can result from individually
minor but collectively significant projects taking place over a period of time.” (Cal. Code
Regs., tit. 14, § 15355, subd. (b); FP Rules, rule 895.1.) Cumulative impacts must be
considered in timber harvest plans and are assessed “based upon the methodology
described in Board [of Forestry] Technical Rule Addendum [No.] 2 [(FP Rules, foll.
rule 952.9)].” (FP Rules, rule 898; see Ebbetts Pass Forest Watch v. California Dept. of
Forestry & Fire Protection, supra, 43 Cal.4th at p. 950.)
        All elements required under Technical Rule Addendum No. 2, including biological
resources and habitat, are analyzed and considered in section IV of the NTMP. In
evaluating cumulative impacts, the NTMP utilizes a biological assessment area (BAA)


                                              11
encompassing approximately 10,711 acres within a 1.3 mile radius of the plan area. The
NTMP discloses that the plan area is within the known range of the murrelet, and
identified the murrelet as a threatened species known or suspected to be in the assessment
area. It identified the murrelet’s habitat requirements, and two preharvest inspection
reports identified functional murrelet habitat in the LSFS. The NTMP specifically
identifies 14 trees with habitat elements suitable for the murrelet. The DFW murrelet
consultation report, with its recommendations, is also part of the administrative record.
              a.     Murrelet Presence
       Petitioners accuse Bower of falsely denying in the NTMP murrelet sightings
within the BAA, which extends offshore approximately one mile. In a record comment
submitted to CAL FIRE, Friends of the Gualala River cited undisclosed surveys compiled
by Bower’s forester noting two positive marine sightings of murrelets within the BAA.
They argue that this information made misleading the NTMP’s disclosure of audio-visual
murrelet detection in an area 13.6 miles southeast of the plan area. The compilation,
however, covered a 28-year period from 1980 to 2008, with the latest positive marine
detection in 2000. CAL FIRE confirmed that no murrelet detections had been associated
with terrestrial portions of the BAA, and no more recent positive detections of any nature
proximate to the BAA. CAL FIRE considered the comment and found that the
information did not change the conclusions arrived at in the NTMP, finding no evidence
establishing a connection between marine detections and local nesting sites.
              b.     Continuity of Habitat
       Petitioners heavily rely on a 1997 United States Fish and Wildlife Service report
(the Murrelet Recovery Plan) in support of its assertion that the LSFS is critical to
avoiding gaps in population distribution of murrelets in the coastal forests of Mendocino
County. The Murrelet Recovery Plan places Mendocino County in “Conservation
Zone 5,” which is identified as a significant “gap” in murrelet population distribution.
The Murrelet Recovery Plan notes that “[t]he more contiguous the habitat distribution,
the lower the likelihood of future large gaps in distribution of the species due to
catastrophic events such as oil spills or large wildfires. Preventing further erosion of the


                                             12
already patchily-distributed nesting habitat is a key element in buffering the species
against such catastrophic events. This is especially important in areas where gaps already
occur.” Petitioners insist that the NTMP is deficient in failing to disclose or acknowledge
the importance to long-term murrelet survival of maintaining all remnant late seral
habitat, particularly in light of existing murrelet habitat shortage.
       The NTMP concluded, however, that based on actual site inspections “[n]o
continuity of late seral habitat exists within the BAA. The scattered and infrequent
distribution of individual late seral trees does not provide continuity of this habitat type.”
CAL FIRE’s Official Response found no adjacent or nearby similar habitats and agreed
that there was no existing continuity of habitat within the plan area, and likely none
within the BAA, “as a result of 130 years of timber production.” CAL FIRE concluded
that the logging activities proposed under the NTMP “will not cause fragmentation or
loss of interconnectivity of suitable marbled murrelet nesting habitat available to local
nesting murrelet populations . . . within Conservation Zone 5 (the habitat gap between
Zones 4 & 6) of the Federal Murrelet Recovery Plan.”
              c.      Impacts of Logging on Late Seral Habitat Functionality
       Petitioners contend that the NTMP fails to acknowledge that proposed logging
activity will effectively eliminate late seral habitat within the LSFS by substantially
reducing forest density, opening up the existing forest canopy and removing buffer forest
around potential murrelet nest sites. The parties again draw dramatically differing
conclusions from the same record.
       The DFW, in its June 2009 preharvest inspection report, found the LSFS to be a
multi-layered stand, with large dominant trees over smaller understory trees. DFW
estimated the overstory layer as a size Class 5,20 and the understory layer as at least a size

       20
         Tree size and density classifications are utilized in the California Wildlife
Habitat Relationships System, a standardized habitat classification system incorporated
by reference in the Forest Practice Rules (see rules 895, 895.1; Mayer & Laudenslayer,
A Guide to Wildlife Habitats of California (1988) <http://www.dfg.ca.gov/biogeodata/
cwhr/wildlife_habitats.asp> (as of Dec. 2, 2014)). Size class 5M and 5D are trees greater
than 24 inches (Class 5), which may have moderate (5M) canopy of 40–60 percent, or

                                              13
Class 3.21 In Petitioners’ view, logging will reduce the number of large trees (≥ 24-inch
diameter) from 31 per acre, to 1.3 or 1.7 larger trees (≥ 40-inch diameter) per acre and
two additional trees over 24 inches in diameter. By Petitioners’ calculations, the NTMP
will reduce the overall number of large trees in the LSFS (≥ 24-inch diameter) by
approximately 90 percent and entirely eliminate Class 5 habitat in the stand.
       Bower acknowledges that there will be removal of certain overstory trees within
the LSFS, but notes that 30 of 67 large diameter trees (45 percent), selected in
consultation with DFW, will be retained and continue to contribute to the overstory.
These retained trees will provide “stocking control, uneven aged diameter distribution,
WLPZ[22] canopy protection, shade and temperature control, . . . [and] biological diversity
for wildlife habitat.” Two replacement trees must be recruited for any large diameter tree
scheduled for retention that falls or becomes a snag, and must be selected from the upper
20 percent of tree diameters in or within 100 feet of a WLPZ. Beyond the initial
inventoried trees to be harvested, the LSFS basal area of conifers and hardwoods may not
be reduced below 175 square feet, with trees of 36-inch DBH or greater constituting not
less than 40 percent of the LSFS basal area, and not less than 30 percent of the basal area
of trees over 36-inch DBH must be in trees 48-inch DBH or greater. Harvesting activities
must leave “at least 50% of the total canopy covering the ground in a well distributed
multi-storied stand configuration.” The NTMP concludes that “multistoried
characteristics which exist on the plan area within the WLPZ will be represented in the
post-harvest stand.”

dense (5D) canopy of greater than 60 percent. (Cal. Dept. of Forestry & Fire, CWHR
Classification System (2014) <http://frap.cdf.ca.gov/projects/frap_veg/
classification.html> (as of Dec. 2, 2014).)
       21
         Bower’s forester contended that the appropriate California Wildlife Habitat
Relationships System class was MHC-2-D and MHC-3-D.
       22
          WLPZ (Watercourse and Lake Protection Zone) “means a strip of land, along
both sides of a watercourse or around the circumference of a lake or spring, where
additional practices may be required for protection of the quality and beneficial uses of
water, fish and riparian wildlife habitat, other forest resources, and for controlling
erosion.” (FP Rules, rule 895.1.) The LSFS contains two areas designated as WLPZ.

                                            14
              d.      Maintenance of Functional Late Seral Nesting Habitat
       Petitioners argue that the NTMP contains no discussion or analysis about how an
adequate amount of large trees, canopy or stand structure around potential nest trees will
be retained to ensure preservation of functional nesting habitat for murrelets.
       Petitioners ignore the fact that the NTMP requires permanent retention of 14 trees
specifically identified within the LSFS as presenting nesting elements suitable for the
murrelet. In addition to multistory canopy elements discussed ante, the NTMP further
requires compliance with specific DFW recommendations to “retain and buffer suitable
nesting habitat” until completion of protocol murrelet surveys, including no logging
activity within a 300-foot zone around suitable nesting habitat. Only if DFW determines
that proposed logging activity will not adversely affect the murrelet, will a logging
moratorium in this area be lifted, and only for a period of three years, following which
protocol surveys must again be conducted if logging is proposed within 825 feet of the
LSFS.23
              e.      Retention of Only “Elements” of Late Seral Forest
       Petitioners assert that the NTMP proposes only to retain “elements” of late seral
forest, rather than a functional late seral habitat. They contend that the NTMP is not
“designed to maintain the mature forest density and canopies necessary for the stand to
function as late seral nesting habitat,” and that following logging activities, “the
remaining forest will not look or function like late seral habitat, but rather as young,
second and third growth forest with a smattering of old forest elements.” They contrast
what they argue are higher resulting basal areas and number of large trees in other NTMP
units that are not considered late seral, with those that they calculate will result in the
LSFS. Respondents challenge the accuracy of Petitioners’ calculations, and the
assumptions upon which those calculations are based. More significantly, however, the

       23
         On April 2, 2012, following completion of the original protocol surveys, DFW
advised CAL FIRE that it had determined that “the harvest within or adjacent to [the
LSFS] is unlikely to ‘take’ or adversely affect the marbled murrelet for a period of three
years.”


                                              15
calculations and comparisons Petitioners attempt to make, even if accurate, do not appear
to offer a complete description of the resulting environment. The record does not
indicate that late seral habitat is defined by basal areas or tree size (or species) alone. The
definition of a “late succession forest stands” in the Forest Practice Rules includes not
only tree size and canopy, but also notes that “[f]unctional characteristics of late
succession forests include large decadent trees, snags, and large down logs.” (FP Rules,
rule 895.1.) The Forest Practice Rule definition of “functional nesting habitat” likewise
includes not only canopy parameters, but includes “multi-specied trees (including
hardwoods) of mixed sizes. All nests, snags, down logs, and decadent trees shall also be
considered as part of the habitat.” (Ibid.) DFW criticized the focus of the Forest Practice
Rule definition of “late succession forest stands” on tree size and tree density and its own
“more ecological” late seral forest habitat definition focused on broader “structural
complexity” elements of such a habitat and multiple environmental factors that “affect
the ecological function of the late-succession stand.” The concerns voiced by DFW, and
addressed in the revised NTMP, were identification and preservation of specifically
identified “late seral components in the LSFS,” which Petitioners elsewhere repeatedly
insist are unique within the NTMP. Petitioners’ claim that “there is no basis for assuming
the post-logged 18 acre stand will be any different” from the other units in the NTMP
which are considered nonfunctional for late seral wildlife thus lacks support.
              f.     Feasibility of Alternatives
       Petitioners fault the NTMP and CAL FIRE for failure to address feasibility of
alternatives that might avoid significant impacts of logging. Specifically, it criticizes the
absence of a “CEQA-equivalent analysis in the record why regulation to [prevent logging
in the LSFS] would render the overall NTMP . . . an economically infeasible
proposition.” (Fn. omitted.)
       The NTMP analysis of project alternatives included consideration, and rejection
of, a no-project alternative, a reduced project size, public purchase of the LSFS, or sale of




                                              16
a conservation easement on that parcel.24 The Official Response also dealt with
comments that the NTMP did not adequately consider alternatives. CAL FIRE
concluded that because mitigation measures included in the plan would avoid significant
impacts and address the environmental concerns expressed by the review team agencies,
there were few reasonable alternatives that would actually lessen impacts below the level
produced by the revised NTMP, and that “it is not demonstrated that simply no
harvesting in Unit 9 would reduce impacts.” “ ‘An EIR need not consider every
conceivable alternative to a project.’ [Citation.] Moreover, ‘alternatives shall be limited
to ones that would avoid or substantially lessen any of the significant effects of the
project.’ [Citations.]” (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd.
of Directors (2013) 216 Cal.App.4th 614, 649, italics omitted.)
       3.     Substantial Evidence
       While Petitioners seek to frame the issues as failure to provide adequate
information and analysis, the real question presented is whether CAL FIRE’s conclusions
are supported by substantial evidence. We find that they are.
       Petitioners’ challenges to the NTMP’s adequacy ultimately arise from
fundamental disagreement with the conclusions reached by CAL FIRE in its approval of
the plan. Petitioners envision intensive logging within and around the LSFS resulting
from the NTMP, with a consequent total and catastrophic loss of viable murrelet habitat.
CAL FIRE concludes that, with appropriate mitigation measures, the selective and
limited timber harvesting permitted in and around the LSFS will have no significant
impact on an existing marginal but viable habitat, which will be preserved without
significant adverse impact on wildlife, including the murrelet. “[M]ere disagreement is
insufficient. [Citations.]” (North Coast Rivers Alliance v. Marin Municipal Water Dist.
Bd. of Directors, supra, 216 Cal.App.4th at p. 653.) The burden is on Petitioners to
“affirmatively show there was no substantial evidence in the record to support [CAL


       24
       The project alternatives analysis is located in “Section IV: Cumulative Impacts
Assessment” (part O, pp. 245.15–256) of the revised NTMP.


                                             17
FIRE’s] findings.” (California Native Plant Society v. City of Rancho Cordova (2009)
l72 Cal.App.4th 603, 626.)
       CAL FIRE’s views were based on silvicultural analysis by Bower’s forester and
its own experts, its participation in at least two site inspections of the LSFS, consideration
of DFW’s recommendations and its murrelet consultation, and public participation and
comment. A public agency may choose between differing expert opinions, and may also
properly rely upon the opinion of its staff in reaching decisions. (Oakland Heritage
Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 900.) We have neither the
authority nor the expertise to resolve the conflicting views of Petitioners and CAL FIRE
and to determine whose view of the future of the LSFS (and the murrelet) is more
prescient. (See Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 393; North Coast Rivers Alliance v. Marin Municipal Water Dist.
Bd. of Directors, supra, 216 Cal.App.4th at p. 653.) We are limited to a determination of
whether substantial evidence supports CAL FIRE’s determination. It does.
B.     Failure to Recirculate the NTMP
       Petitioners contend that “significant new information” was added to the NTMP
prior to certification, requiring recirculation for public review. (See § 21092.1; FP Rules,
rule 898.1(d).) Petitioners cite a December 2, 2009 single-page memo from CAL FIRE
wildlife biologist, Robert Motroni, commenting on Bower’s November 12, 2009 revised
NTMP proposal for retention of large trees within the LSFS. Motroni recommended four
additional protective measures, including retention of all trees with basal fire scars and
hollows, and retention of trees “immediately adjacent to the retained tree of interest” to
create a “management zone” approximately 50 feet in diameter, dependent on site
specific conditions, to maintain “wind firmness.” The internal memo was not circulated
for public review. The issues Motroni raised were, however, presented and discussed in a
second review by the CAL FIRE interdisciplinary review team on December 3, 2009.
Each of Motroni’s recommendations were addressed in additional mitigation measures,
including creation of a 100-foot buffer area adjacent to the boundary of the LSFS, from
which group harvest was excluded, and requiring a minimum postharvest conifer basal


                                             18
area of 100 square feet. Bower accepted these additional measures, as well as others, on
December 8, 2009. Petitioners argue that, by failing to circulate Motroni’s comments,
the public was deprived of the right to address whether these mitigation measures were
adequate.
       A “final EIR will almost always contain information not included” in the
circulating draft. (Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1124.) Recirculation based on the addition of new
information after the close of the public comment period is not required unless that
information is “significant.” (Id. at p. 1129.) The information is not considered
significant unless the document “is changed in a way that deprives the public of a
meaningful opportunity to comment upon a substantial adverse environmental effect of
the project or a feasible way to mitigate or avoid such an effect (including a feasible
project alternative) that the project’s proponents have declined to implement. [Citation.]”
(Ibid.) “[R]ecirculation is not required where the new information added to the EIR
‘merely clarifies or amplifies [citations] or makes insignificant modifications in [citation]
an adequate EIR.’ [Citation.] On the other hand, recirculation is required, for example,
when the new information added to an EIR discloses: (1) a new substantial
environmental impact resulting from the project or from a new mitigation measure
proposed to be implemented [citation]; (2) a substantial increase in the severity of an
environmental impact unless mitigation measures are adopted that reduce the impact to a
level of insignificance [citation]; (3) a feasible project alternative or mitigation measure
that clearly would lessen the environmental impacts of the project, but which the
project’s proponents decline to adopt [citation]; or (4) that the draft EIR was so
fundamentally and basically inadequate and conclusory in nature that public comment on
the draft was in effect meaningless [citation].” (Id. at pp. 1129–1130, fn. omitted.)
Recirculation is an exception, rather than the general rule. (Id. at p. 1132.) “An agency’s
decision not to recirculate a draft [EIR] is entitled to substantial deference; the petitioner
bears the burden of proof to show no substantial evidence supports the agency’s decision.
[Citations.]” (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of


                                              19
Directors, supra, 216 Cal.App.4th at p. 655.) “[W]e resolve reasonable doubts regarding
the agency’s decision in favor of upholding the administrative decision. [Citation.]”
(California Oak Foundation v. Regents of University of California (2010)
188 Cal.App.4th 227, 266.)
       Here, the Motroni memo disclosed no new environmental impacts nor any
substantial increase in the severity of an environmental impact. Motroni, during the
comment period, suggested strengthening of certain mitigation measures already
proposed by DFW for protection of habitat within the LSFS. The protection of habitat
(for the murrelet and other species) within the LSFS had been a principal focus of
environmental review for the NTMP since at least the first DFW preharvest inspection
report in June 2009. The time for public comment had been extended from November 16
to December 16, 2009, to allow consideration, among other things, of “[a]dditional
information pertaining to retention of large-diameter trees with structural features, and
the maintenance of functional wildlife habitat” within the LSFS. The public was not
deprived of a meaningful opportunity to comment on these matters. In fact, members of
the public, including Petitioner Friends of the Gualala River, participated in the second
review in which the additional recommendations and alternatives were discussed.
Finally, Bower did not decline to adopt the additional measures CAL FIRE required, but
accepted these measures on December 8, 2009, eight days prior to the close of the public
comment period. Substantial evidence supports CAL FIRE’s decision not to recirculate
the NTMP.
C.     CESA
       Petitioners contend that, in approving the NTMP, CAL FIRE violated the mandate
of CESA to conserve endangered species such as the murrelet. (Fish & G. Code,
§ 2053.)25 Petitioners argue that even unoccupied nesting habitat is critical to the


       25
         “The Legislature . . . finds and declares that it is the policy of the state that state
agencies should not approve projects as proposed which would jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or
adverse modification of habitat essential to the continued existence of those species, if

                                               20
viability of murrelets in the region. They assert that “the record demonstrates that
preserving remnant stands of late seral habitat, especially in the Zone 5 region, will be
necessary to maintain the ability of murrelets to persist into the future” and that logging
in the LSFS will “contribute to the catastrophic, incremental loss of habitat essential to
the long term conservation of the murrelet.” CAL FIRE addressed this contention in the
Official Response, finding that, with the mitigation measures imposed, the NTMP would
not cause significant impacts to any threatened or endangered species. As discussed ante,
we have already found this conclusion to be supported by substantial evidence.
Moreover, the mitigation conditions imposed in and adjacent to the LSFS require
adherence to specific DFW recommendations to “retain and buffer suitable nesting
habitat” until completion of protocol murrelet surveys, including no logging activity
within a 300-foot zone around suitable nesting habitat. DFW must determine that
proposed logging activity will not adversely affect the murrelet before logging activity is
permitted.26 CAL FIRE found that implementation of the plan, as mitigated, would not
result in take, jeopardy or adverse modification of habitat in violation of CESA. That
finding is supported by substantial evidence.
D.     Petitioners’ Claim against DFW
       Petitioners presented a separate claim against DFW, seeking ordinary mandamus
(Code Civ. Proc., § 1085) and declaratory relief, alleging that DFW failed to fulfill its
public trust and statutory obligations by failing to submit a nonconcurrence in the



there are reasonable and prudent alternatives available consistent with conserving the
species or its habitat which would prevent jeopardy.” (Fish & G. Code, § 2053.) As
Respondents note, that section further provides that “it is the policy of this state and the
intent of the Legislature that reasonable and prudent alternatives shall be developed by
the department, together with the project proponent and the state lead agency, consistent
with conserving the species, while at the same time maintaining the project purpose to the
greatest extent possible.” (Ibid.)
       26
         As noted ante, the initial DFW protocol murrelet surveys found that “the harvest
within or adjacent to [the LSFS] is unlikely to ‘take’ or adversely affect the marbled
murrelet for a period of three years.”


                                             21
NTMP.27 The Petition as to DFW seeks a writ setting aside approval of the NTMP
“based on [DFW’s] violations of, and failure to fulfill, its public trust and statutory
obligations . . . .” They allege that the public has a right to a judicial determination of
whether DFW’s actions in failing to submit a nonconcurrence to the NTMP violated its
common law and statutory duties to protect and conserve wildlife resources, and were
consequently arbitrary and capricious, citing Center for Biological Diversity, Inc. v. FPL
Group, Inc. (2008) 166 Cal.App.4th 1349 (Center for Biological Diversity).28 The trial
court found that the Petition did not state a cause of action against DFW. We agree and
find no authority for Petitioners’ position that they may compel, through traditional
mandamus, an administrative agency with only advisory authority to provide that advice
in a particular manner.
       In seeking traditional mandamus, Petitioners necessarily acknowledge that DFW is
not a lead agency with decisional authority over the approval or denial of an NTMP and
serves in a purely advisory role. (FP Rules, rule 898.1; § 1037.5, subds. (b), (c).)
Approval of an NTMP must be reviewed by administrative mandamus. (Joy Road Area
Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection, supra,
142 Cal.App.4th at p. 665.) We find no authority, and Petitioners cite none, for the
proposition that approval of an NTMP is subject to review, directly or indirectly, through
traditional mandamus under Code of Civil Procedure section 1085, particularly when the
petition is not directed to the only agency with authority to approve or reject the project.
The Petition as to DFW therefore fails on this ground alone.
       Center for Biological Diversity does not suggest a different result. Division Three
of this court held only that members of the public may have standing to bring actions
against public agencies to prevent those agencies from abandoning or neglecting the
       27
         Respondents do not argue here that they are entitled to pursue a claim for
declaratory relief. “It is settled that an action for declaratory relief is not appropriate to
review an administrative decision. [Citations.]” (State of California v. Superior Court
(1974) 12 Cal.3d 237, 249; Tejon Real Estate, LLC v. City of Los Angeles (2014)
223 Cal.App.4th 149, 155.)
       28
            Apparently DFW prepared a draft nonconcurrence, which it elected not to file.


                                               22
public’s rights with respect to resources subject to the public trust. (Center for Biological
Diversity, supra, 166 Cal.App.4th at pp. 1366–1367.) The court noted that it made no
attempt to define the scope of public trust duties subject to individual enforcement, and
had “no occasion [t]here to address the responsibilities that sundry agencies bear in this
regard, whether such obligations be imposed by statute or by common law.”29 (Id. at
p. 1369.) What Center for Biological Diversity clearly did not do is relax in any manner
the substantive requirements to obtain writ relief under Code of Civil Procedure
section 1085.
       “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.]’ [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. v. Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 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 ministerial duty is an
obligation to perform a specific act in a manner prescribed by law whenever a given state



       29
          The Center for Biological Diversity court also did not suggest the standard of
review that would apply in such circumstances. We note that in a somewhat different
context (legislatively delegated authority to an administrative agency for issuance of
transportation bonds), the Third District Court of Appeal recently held that where an
administrative agency performs a discretionary quasi-legislative act, “judicial review is at
the far end of a continuum requiring the utmost deference. [Citation.] An agency’s
exercise of discretionary legislative power will be disturbed ‘only if the action taken is so
palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law.
This is a highly deferential test. [Citation.]’ [Citation.]” (California High-Speed Rail
Authority v. Superior Court (2014) 228 Cal.App.4th 676, 699.)


                                              23
of facts exists, without regard to any personal judgment as to the propriety of the act.
[Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.)
       Petitioners demonstrate no such duty on the part of DFW. Fish and wildlife
resources clearly are protected by both statute (Fish & G. Code, § 711.7, subd. (a) [“fish
and wildlife resources are held in trust for the people of the state by and through
[DFW]”]) and by the public trust doctrine, which encompasses the protection of wildlife.
(Center for Biological Diversity, supra, 166 Cal.App.4th at p. 1363.) But “the duty of
government agencies to protect wildlife is primarily statutory. Fish and Game Code
section 1801, which declares that it is ‘the policy of the state to encourage the
preservation, conservation, and maintenance of wildlife resources under the jurisdiction
and influence of the state,’ also declares in subdivision (h) that ‘[i]t is not intended that
this policy shall provide any power to regulate natural resources or commercial or other
activities connected therewith, except as specifically provided by the Legislature.’ ”
(Environmental Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459, 515.)
       DFW’s statutory responsibility on CEQA projects, as trustee for fish and wildlife
resources, is to “consult with lead and responsible agencies and . . . provide, as available,
the requisite biological expertise to review and comment upon environmental documents
and impacts arising from project activities . . . .” (Fish & G. Code, § 1802.) A public
agency is required to take its public trust responsibilities into account in providing its
review and comment. (Center for Biological Diversity, supra, 166 Cal.App.4th at
p. 1366.) The evidence is that DFW fulfilled its responsibilities, and Petitioners make no
challenge to the substantive comments or recommendations made by DFW. What
Petitioners seek to challenge is DFW’s decision not to actively oppose action for which
another agency is ultimately responsible. That decision appears to be quintessentially an
exercise of agency judgment and discretion, and anything but “ministerial,” “clear” or
“mandatory.” (See US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113,
138–139.) Petitioners have failed to show otherwise. Thus, mandamus is not an
available remedy in this context.


                                              24
                                III.   DISPOSITION
     The judgment is affirmed. Respondents are to recover their costs on appeal.




                                              _________________________
                                              BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




                                         25
