Brandt-Hawley & Zoia, Susan Brandt-Hawley, Glen Ellen, for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz, IV, Senior Assistant Attorney General, John Davidson, Supervising Deputy Attorney General, for Defendant and Respondent.
Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter,
Cindee F. Mayfield, Ukiah, for Real Party in Interest.
LAMBDEN, Associate Justice.
The Z'berg-Nejedly Forest Practice Act of 1973 (the Act or Forest Practice Act; Pub. Resources Code, s 4511 et seq. as amended; undesignated section references are to that code) generally requires submission of a timber harvest plan (THP), for review by the California Department of Forestry and Fire Protection (department or CDF) and an opportunity for public review and input, before logging operations may be conducted. Since 1976, the THP process as implemented by regulations promulgated under the Act by the State Board of Forestry (board or BOF) has been certified as the functional equivalent of the environmental impact report (EIR) process which otherwise would be required by the California Environmental Quality Act (CEQA; s 21000 et seq.). (T.R.E.E.S. v. Department of Forestry & Fire Protection (1991) 233 Cal.App.3d 1175, 1180, 285 Cal.Rptr. 26.) CDF reviews THP's to ensure compliance with the Act, its regulations (Cal.Code Regs., tit. 14, ss 895- 1663.9; hereafter cited as rule(s) or forest practice rule(s)) and unsupplanted provisions of CEQA. (Environmental Protection Information Center v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1011, 1014, 50 Cal.Rptr.2d 892 (EPIC ).)
But the Act also authorizes BOF to adopt regulations exempting
specified activities from the THP process. "Upon determining
the exemption is consistent with the purposes of this chapter"
(i.e., ss 4511-4628), for example, the board may exempt "[t]he
cutting or removal of dead, dying, or diseased trees of any size"
(s 4584, subd. (c)). The board may also define "emergencies"
like "the necessity to harvest to remove fire-killed or damaged
timber or insect or disease-infested timber," which then
allows an owner to file with CDF a "declaration of emergency"--an
" 'emergency notice' ... that shall allow immediate commencement
of timber operations" (s 4592). [FN1]
FN1. Section 4584 provides in pertinent part: "Upon determining
that the exemption is consistent with the purposes of this chapter,
the board may exempt from this chapter or portions thereof, any
person engaged in forest management whose activities are limited
to any of the following: [P] ... [P] (c) The cutting or removal
of dead, dying, or diseased trees of any size." Section 4592
provides in pertinent part: "Notwithstanding any other provisions
of this chapter, a registered professional forester [ (RPF) ]
may in an emergency, on behalf of a timber owner or operator,
file an 'emergency notice' with the department that shall allow
immediate commencement of timber operations. The emergency notice
shall include a declaration, under penalty of perjury, that a
bona fide emergency exists which requires immediate harvest activities....
Those emergencies shall be defined by the board and may include,
but are not limited to, the necessity to harvest to remove fire-killed
or damaged timber or insect or disease- infested timber, or to
undertake emergency repairs to roads."
The board has promulgated regulations for both categories. Rule
1038, titled "Exemption," allows the submission of a
sworn exemption for harvesting "dead, dying or diseased trees
of any size ... in amounts less than 10 percent of the average
volume per acre" provided 10 limiting conditions are met.
[FN2] Rule 1052, entitled "Emergency Notice," requires
a sworn declaration of "bona fide emergency" requiring
emergency operations. The notice must describe specific conditions
constituting the emergency, its cause, the "reason for immediate
commencement," the scope, manner and dates of intended operations,
and other information. [FN3] As amended in December 1995,
both rules give CDF five working days to assess whether a notice
(exemption or emergency) is complete.
FN2. Rule 1038 provides in part: "Persons who conduct the
following types of timber operations are exempt from the plan
preparation and submission requirements ( [s ] 4581) and from
the completion report and stocking report requirements ( [ss ]
4585 and 4587) of the Act: "..........................................................................
"(b) Harvesting dead, dying or diseased trees of any size,
fuelwood or split products in amounts less than 10 percent of
the average volume per acre when the following conditions are
met: "(1) No tractor or heavy equipment operations on slopes
greater than 50 percent. "(2) No construction of new tractor
roads on slopes greater than 40 percent. "(3) Timber operations
within any Special Treatment Area shall comply with the rules
associated with that Special Treatment Area. "(4) No tractor
or heavy equipment operations on known slides or unstable areas.
"(5) No new road construction or reconstruction (as defined
in [rule] 895.1). "(6) No heavy equipment operations within
a watercourse or lake protection zone except for maintenance of
roads and drainage facilities or structures. "(7) No known
sites of rare, threatened or endangered plants or animals will
be disturbed, threatened or damaged. "(8) No timber operations
within the buffer zone of a species of special concern (as defined
in [rule] 895.1). "(9) No timber harvesting in a watercourse
or lake protection zone except sanitation-salvage harvesting.
"(10) No timber operations on any site that satisfies the
criteria listed in 895.1 for a significant archaeological or historical
site. Information on some of these sites may be available from
the Information Centers of the California Historical Resources
Information System within the Department of Parks and Recreation.
"The Director [of Forestry] may issue exceptions to these
conditions if it will not result in significant effect on the
environment (as defined in [rule] 1038). "..........................................................................
"(e) The limit of 10 percent of the volume per acre in subsection
(b) above does not apply when harvesting dead trees which are
unmerchantable as sawlog-size timber from substantially damaged
timberlands, and the conditions of subsection (b)(1)-(10) are
met. "Operations pursuant to an exemption under subsection
(d) and (e) may not commence for five working days from the date
of the Director's receipt of the exemption unless this delay is
waived by the Director, after consultation with other state agencies.
The Director shall determine whether the exemption is complete,
and if so, shall send a copy of a notice of acceptance to the
submitter. If the exemption is not complete and accurate it shall
be returned to the submitter and the timber operator may not proceed.
If the Director does not act within five days of receipt of the
exemption, timber operations may commence. "All of the following
shall apply to exemptions submitted under subsection (e). "The
landowner shall notify the Director of the completion of timber
operations within 30 days of their cessation. "At least one
inspection conducted by the Director shall be made after the completion
of operations (Section 4604 ... ). "The RPF or the Director
shall certify that the lands are substantially damaged timberland.
The RPF or the Director shall also certify that no conditions
were identified where operations, conducted in compliance with
the rules of the Board, would reasonably result in significant
adverse effects. "..........................................................................
"A person conducting timber operations under any exemption
as described in 1038(f), shall be limited to one year from the
date the Department receives the exemption form. A person shall
comply with all operational provisions of the Forest Practice
Act and District Forest Rules applicable to 'Timber Harvest Plan',
'THP', and 'plan'. "........................................................................."
FN3. Rule 1052 provides: "Before cutting or removing timber
on an emergency basis, an RPF on behalf of a timber owner or operator
shall submit a Notice of Emergency Timber Operations to the Director,
in a form prescribed by the Director. Said notice shall contain
a declaration, made under penalty of perjury, that a bona fide
emergency exists which requires emergency timber operations.
The notice shall include, but not be limited to, the following:
"(a) Names and addresses of all timberland owner(s), timber
owner(s), and timber operators for the area on which timber will
be cut or removed. "(b) A description of the specific conditions
that constitute the emergency, its cause, extent and reason for
immediate commencement of timber operations. "(c) Legal description
of the area from which timber will be cut or removed. "(d)
A map of suitable scale showing the area from which timber will
be cut or removed, the legal description, roads and Class I, II,
III and IV watercourses. "(e) Harvesting method to be followed.
"(f) The expected dates of commencement and completion of
timber operations. "(g) Name, address, license number, and
signature of the RPF who prepares the notice and submits it to
the Director on behalf of the timber owner or operator. Timber
operations pursuant to an emergency notice shall comply with the
rules and regulations of the Board, except where, upon agreement
between the RPF and the Department, waiver of a rule would better
mitigate the causes of a non-financial emergency. A person conducting
timber operations under an Emergency Notice shall comply with
all operational provisions of the Forest Practice Act and District
Forest Practice Rules applicable to 'Timber Harvest Plan', 'THP',
and 'plan'. Timber operations pursuant to an Emergency Notice
may not commence for five working days from the date of the Director's
receipt of the Emergency Notice unless such waiting period is
waived by the Director. The Director shall determine whether
the emergency notice is complete. If it is found to be complete
the Director shall send a copy of a notice of acceptance to the
timberland owner. If the Emergency Notice is not complete it
shall be returned to the submitter. If the Director does not
act within five working days of receipt of the Emergency Notice,
timber operations may commence.. Timber operations shall not continue
beyond 120 days after the Emergency Notice is accepted by the
Director unless a plan is submitted to the Director and found
to be in conformance with the rules and regulations of the Board."
The case before us grows out of salvage operations proposed by
Louisiana- Pacific Corporation (L-P) in the Greenwood Creek watershed
area near the coastal town of Elk, in Mendocino County. In late
August 1993, L-P filed (1) an exemption notice (1-93EX-1135 MEN;
rule 1038) for 1380 acres, citing a need to salvage dead, dying
or diseased trees prompted by "blow down" damage from
a wind storm in February of that year, and (2) an emergency notice
(1-93EM-043 MEN; rule 1052) for a smaller, 109-acre parcel of
more concentrated damage from the same storm. [FN4] CDF acknowledged
both notices within a week, as L-P continued working with community
representatives on local concerns.
FN4. Rule 1052.1(b) specifies that emergency conditions include
"[t]rees that are fallen, damaged, dead or dying as a result
of wind, snow, freezing weather, fire, flood, landslide or earthquake."
In mid-September, the Elk County Water District and the Greenwood Watershed Association, an affiliate of a nonprofit corporation Redwood Coast Watershed Alliance, filed this action in superior court for writ of mandate and injunctive and declaratory relief. They named CDF as respondent and L-P as real party in interest, but did not name BOF. They alleged CDF had wrongfully failed to (1) deny approval, (2) require a THP to assess significant environmental impacts, and (3) assess whether an exemption or emergency situation existed. One allegation was that "the Forest Practice Act and Rules regarding exemptions and emergency operations are not the functional equivalent of an EIR."
The court immediately issued a temporary restraining order (TRO) which, given short durations for the exemption and emergency notices, rendered the proposed operations infeasible. A stipulation in September between petitioners and L-P acknowledged this reality and memorialized L-P's decision not to attempt operations under the notices, except for some erosion control work unaffected by the TRO. This development, of course, mooted any need for relief specific to the notices. (Environmental Protection Information Center, Inc. v. Maxxam Corp. (1992) 4 Cal.App.4th 1373, 1380, 6 Cal.Rptr.2d 665.)
The matter was heard on the merits in March 1995, by a different judge, and was submitted on arguments and documents, without testimony. In her points and authorities, petitioners' counsel had argued in part that BOF's "current rules" were "not sufficient" and that a court was obliged to strike down regulations which were null and void. When the judge asked whether she was seeking to "invalidate the current rule[s] ... as being inconsistent with CEQA," she answered: "Yes. And, Your Honor, the Supreme Court just did that in a very related case...." She clarified, "Specifically, the relief requested is not to invalidate rules," but conceded, "That will be the effect, Your Honor...."
By a written decision, the court (1) found BOF an indispensable party whose absence precluded reaching the validity of that agency's exemption and emergency rules, (2) rejected arguments that CDF had to discretionarily review notices, under either the Forest Practice Act or CEQA, and (3) rejected, as unproved, allegations of irreparable injury and widespread abuse of the notice practice. Petitioners (collectively Elk) appeal the ensuing judgment. We affirm.
The court correctly ruled BOF an indispensable party. The Act charges BOF with rulemaking authority (s 4551), including authority to define the exempt activity (s 4584) and emergency (s 4592) categories at issue here; CDF has only enforcement authority (s 4119). Any judgment declaring a BOF exemption or emergency rule invalid would therefore have left the promulgating agency unbound and the affected party, CDF, still charged with the rules' enforcement. The board was thus an indispensable party (Code Civ. Proc., s 389, subd. (a); cf. Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692-693, 49 Cal.Rptr.2d 847; Welch v. Bodeman (1986) 176 Cal.App.3d 833, 839, 222 Cal.Rptr. 435; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500, 157 Cal.Rptr. 190), and the court was within its equitable discretion to proceed instead "among the parties before it" (Code Civ. Proc., s 389, subd. (b)) and not adjudicate the rules' validity.
Elk's only direct retorts are these: (1) the board exists "in the department" (s 730) and so assertedly need not be separately served; and (2) its counsel represented at the hearing below that a Ms. Bakus, former opposing counsel from the Attorney General's office, had "indicated" a year earlier "she would not take the position that the Board was an indispensable party and preferred that we go this way."
Neither point is persuasive. Ms. Bakus's claimed representation was disputed by current opposing counsel at the hearing, who understandably questioned whether counsel for CDF would even have power to bind BOF to such a "waiver." Elk also cites us no authority supporting estoppel or any other theory which might overcome the defect. Elk likewise cites no authority holding one agency bound by a ruling affecting another simply because of an organizational relationship found only in code structure.
Counsel for Elk cites another of her mandamus cases, Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 8 Cal.Rptr.2d 473, as authority that one need only name a county to secure review of the acts of the county's board of supervisors. Even if the analogy fit, however, no such issue was raised or addressed in that opinion, which leaves it without precedential value on the point (Canales v. City of Alviso (1970) 3 Cal.3d 118, 128, fn. 2, 89 Cal.Rptr. 601, 474 P.2d 417).
We, like the trial court, therefore decline to assess the validity of the board's rules. As a backup position, Elk offers a strategic course correction it also offered below. Elk reasons we can leave BOF's rules intact--despite their lack of provision for CDF review of impacts, emergencies and exemptions-- and impose review requirements judicially, as compelled by CEQA. This proposal has the sour stench of sophistry, for the requested judicial construction would obviously leave the rules functionally invalid. Nevertheless, we proceed briefly to refute the CEQA argument.
Elk frames its arguments variously, but we distill their essence as follows: (1) CEQA's provision authorizing the certification of "functional equivalent" programs (s 21080.5) mandates public review and comment which the Forest Practice Act, as implemented, lacks; (2) a certified program only supplants select provisions of CEQA, and CEQA's own exemption and emergency provisions are found in other, unsupplanted sections; (3) the 1976 certification of the Forest Practice Act does not specifically refer to emergencies or exemptions under the Act; (4) those provisions should therefore be deemed "not a part of the certified regulatory program, but within a class of 'categorical' exemptions" governed by CEQA; (5) this construction better protects the environment.
CDF and L-P cumulatively offer this analytic framework in response: (1) Exempt and emergency operations are not "projects" within CEQA; (2) if they are, they are not "discretionary" ones which CDF must "approve"; (3) they are, in any event, exempt as falling within the certified regulatory program; (4) any challenge to that certification is time-barred; (5) if CEQA does govern exempt and emergency timber operations, it does not mandate public notice and review, as Elk supposes.
Leaving some questions aside, we affirm the judgment by holding the exemption and emergency provisions do fall within the certified regulatory program. Because the issues of statutory and regulatory interpretation subsumed within that analysis are purely legal (Simplicity Pattern Co. v. State Bd. of Equalization (1980) 27 Cal.3d 900, 905, 167 Cal.Rptr. 366, 615 P.2d 555) and unaffected by any fact-finding below, we apply our independent judgment, though noting the trial court correctly reached the same result.
Elk's point about a certified regulatory program (s 21080.5) mandating public review and comment which the Forest Practice Act and regulations lack, is unnecessary to address on the merits. Even if Elk were right, the exemption and emergency provisions (ss 4584, 4592) and implementing rules were a part of the regulatory program when it was certified under CEQA in January 1976 as functionally equivalent to the EIR process. To argue deficiencies in the program now is to argue them 20 years too late (Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 458-459, 246 Cal.Rptr. 82; s 21080.5, subd. (h) [action to attack certification as not in compliance must be brought within 30 days] ). Moreover, as already explained (part I, ante ), Elk cannot attack the rules themselves, as noncomplying, for the additional reason that the promulgating agency, BOF, is not a party here.
Also, this court has recently noted the Legislature's repeated amendments to the exemption provisions of the Act (s 4584) "five separate times [between 1973 and 1994], each time adding new specific exemptions to the general requirement of a THP...." (EPIC, supra, 43 Cal.App.4th 1011, 1015, 50 Cal.Rptr.2d 892.) The Legislature is presumed to be aware of long-standing administrative practice, and its failure to modify the Act in the ways Elk stresses here indicates acquiescence in that practice as consistent with legislative intent. (Coca-Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d 918, 922, 156 P.2d 1; Horn v. Swoap (1974) 41 Cal.App.3d 375, 382, 116 Cal.Rptr. 113.) The Act's emergency provision (s 4592) has likewise been amended twice (Stats.1976, ch. 1300, s 97, pp. 5841-5842; Stats.1994, ch. 746, s 4, No. 9 West's Cal. Legis. Service, pp. 3154-3155) without pertinent change.
The only question then is whether, as Elk claims, the exemption and emergency provisions fall outside the certified regulatory program. Looking first to the seven-page certification document of January 6, 1976, by the Secretary of Resources, Elk notes the document makes no specific mention of the Forest Practice Act exemption or emergency provisions or implementing rules. We find this unremarkable given the document's brevity and focus on the specific compliance criteria set out in section 21080.5, which do not specifically address exemptions or emergencies. We are cited no authority demand-ing specific mention in the certification to qualify for inclusion in a regulatory program. Were that so, most of the THP process would be outside the program.
Elk's other argument relies on the continued partial applicability of CEQA following program certification. "Under the terms of section 21080.5, subdivision (c), ... certification expressly exempts the timber harvesting plan process from the provisions of chapters 3 and 4 and section 21167 of CEQA. (s 21080.5, subd. (c).) Chapters 3 and 4 deal, in large part, with the various requirements of an EIR at both the state level (chapter 3) and the local level (chapter 4). Section 21167 sets forth the time within which an action challenging a public agency's decision under the provisions of CEQA must be filed. [P] Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary. [Citation.] CEQA is a legislative act, and the Legislature both had and retains the authority to limit the projects to which CEQA applies. It has specified in section 21080 those projects that are categorically exempt from CEQA. (s 21080, subd. (b)(1)- (16).) Moreover, it has vested in the Secretary of the Resources Agency the authority to identify those projects that do not, as a class, have a significant effect on the environment and which are, as a consequence, exempt from the provisions of CEQA. (s 21084, subd. (a).) The Legislature has not included timber harvesting operations within any of the classes of projects that are exempt from CEQA under sections 21080 and 21084. We therefore reject [the idea] that timber harvesting is 'exempt' from CEQA. Section 21080.5 compels instead the conclusion that timber harvesting in this state is exempt only from chapters 3 and 4 of CEQA and from section 21167 of that act." (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230- 1231, 32 Cal.Rptr.2d 19, 876 P.2d 505, fn. omitted (Sierra Club ).)
Thus authority was found in Sierra Club for CDF to request additional information from a harvester about old-growth-dependent wildlife species within a THP area. While the forest practice rules did not specify such information as among the exclusive criteria for approving a THP (see s 4582.75), a request for information was not "a criterion for reviewing a [THP]," but "instead a prerequisite to application of the criteria established by the board, in particular, [a] rule requiring the director to disapprove those plans which do not incorporate procedures to substantially lessen significant adverse impacts on the environment. ( [Rule] 898.1, subd. (c)(1).)" (Sierra Club, supra, 7 Cal.4th 1215, 1232-1233, 32 Cal.Rptr.2d 19, 876 P.2d 505.) Authority to request the information was found in CEQA's section 21160 (found in nonexempt chapter 5), which likewise authorized a public agency to require the submission of information needed to determine whether a proposed project might have a significant effect on the environment. (Id. at pp. 1231, 1233-1235, 32 Cal.Rptr.2d 19, 876 P.2d 505.)
Elk would extend that rationale here, but there is no direct correlation. No THP is needed, of course, for the exempt and emergency operations at issue here; if CDF "may," under CEQA, require information disclosing possible environmental effects (s 21160), this would hardly create a mandatory duty on the department to do so; Elk's concern in any event is public notice and comment, and nothing in the Forest Practice Act or rules requires that.
Elk offers an indirect correlation, in this manner: (1) certification leaves the THP process exempt from CEQA's chapters 3 and 4 relating to EIR's; (2) CEQA's provisions for emergency and categorical exemptions from EIR's (ss 21080, 21084) are found in chapter 2.6 (s 21080 et seq.); (3) the Forest Practice Act exemptions should likewise be considered not part of the exempt regulatory program but controlled by CEQA; and (4) CEQA requires public review for significant environmental effects.
The reasoning stumbles badly on point (3). Although the provisions for EIR exemptions are found in chapter 2.6 rather than the expressly exempt chapters 3 and 4, it does not follow that THP exemptions are controlled by chapter 2.6. A certification which exempts timber harvesting from the EIR process and substitutes the THP process, as a functional equivalent, exempts by implication those categories of activities which the THP process itself exempts. We also agree with the court below, which noted, "[Elk's contrary argument] leads to the illogical conclusion that exempt activity involving what is surely considered relatively inconsequential activity is subject to EIR procedures while full scale logging activity is not."
Elk relies on a 1985 augmentation of the forest practice rules--chapter
12 entitled "Regulations for the Implementation of [CEQA]"
(rule 1660 et seq.)--which created as a categorically exempt activity
the "Establishment, modification, or dissolution of zones
of insects, disease, or animal infestation or infection...."
(Rule 1662.6, subd. (b).) Noting the rule post- dates the 1976
THP-program certification and broadly concerns "Protection
of Natural Resources," [FN5] Elk contends rule 1662 "encompasses
all exemptions subject to this appeal" and thus controls
the THP exemptions specified in the Forest Practice Act and brings
into play the asserted public review requirements of CEQA.
FN5. Rule 1662.6 reads in full: Action by Regulatory Agencies
for Protection of Natural Resources. "Class 7: Department
projects under this class will consist of actions authorized by
state law or local ordinances to assure the maintenance, restoration
or enhancement of natural resources where the regulatory process
involves procedures for protection of the environment including,
but not limited to: "(a) Establishment, modification, or
dissolution of hazardous fire areas in accordance with Section
4253 of the Public Resources Code; "(b) Establishment, modification,
or dissolution of zones of insects, disease, or animal infestation
or infection; "(c) Controlled burning pursuant to Section
4423 of the Public Resources Code. "(d) Closures of land
or access for fire protection purposes; and "(e) Forest
product waste disposal and storage."
We disagree. Elk's facile logic, while purportedly affecting
only "exemptions subject to this appeal," in fact would
apparently reach any exemption, for all of them could be characterized
as somehow relating to environmental protection. Indeed, all
of the Forest Practice Act itself broadly deals with protection
of the environment, as does all of CEQA. We see no indication
that chapter 12 of the forest practice rules was meant to swallow
up all exemptions of the former act within CEQA's exemption processes.
FN6. Taking a broader approach to this issue, L-P argued for
the first time at oral argument that the chapter 12 rules are
designed to address not logging operations under the THP processes,
but certain activities of CDF's own, like pest and fire control,
which remain subject to CEQA. We need not decide the question.
Next, the "public review" assumption (part (4)) of Elk's rationale is overstated. CEQA guidelines do ask a public agency to scrutinize categorically exempt activities which in unusual circumstances may have significant effects due to considerations like particularly sensitive habit or cumulative impacts. (Cal.Code Regs., tit. 14, s 15300.2; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 656, 11 Cal.Rptr.2d 850.) Elk cites no authority, however, compelling an agency to give notice or hold a public hearing on how it should exercise that discretion, and case law is to the contrary. (Association for Protection of Environmental Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 731-732, 3 Cal.Rptr.2d 488.) Similarly, emergency exemptions under CEQA are given agency scrutiny for true "emergency" status, but case law holds the question of adverse impacts irrelevant to that process. (Western Mun. Water Dist. v. Superior Court (1986) 187 Cal.App.3d 1104, 1113-1114, 232 Cal.Rptr. 359.)
Finally, Elk's policy plea--that the environment would be better protected by having public review and input--is appealing but addressed to the wrong forum. The existing certified program, as authorized by the Legislature, does not require it, and "it is the board, and not the court, that establishes forest policy." (Public Resources Protection Assn. v. Department of Forestry & Fire Protection (1994) 7 Cal.4th 111, 120, 27 Cal.Rptr.2d 11, 865 P.2d 728.)
Elk requests we take judicial notice (Evid.Code, ss 452 and 453) of "federal documents relating to water quality impacts relative to timber harvesting exemptions and the Elk County Water District...." In fact, these are two letters, one each from the regional administrators of two federal agencies (U.S. Environmental Protection Agency and U.S. Dept. of Commerce, National Marine Fisheries Service) expressing only general concern over lack of environmental review of possible impacts of exempt or emergency salvage logging on marine habitat generally. Neither letter addresses the proposed timber operations at issue here, and Elk offers no analysis whatsoever to support the propriety of our taking judicial notice, particularly the letters' relevance and competence as evidence. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, 31 Cal.Rptr.2d 358, 875 P.2d 73.) We deny the request for those reason alone. Also, our analysis in part II is the same even if we assume a general risk of significant environmental effects from use of the notice procedures.
The judgment is affirmed.
KLINE, P.J., and HAERLE, J., concur.