Bringing information you can use for action about herbicides, pesticides and other toxic chemicals in northern California and around our shared world

CALIFORNIANS FOR ALTERNATIVES TO TOXICS; ENVIRONMENTAL

PROTECTION INFORMATION CENTER,

Petitioners,

v.

CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION; and DOES 1 through 30,

Respondents.

_____________________________________/

CASE NO: 313605

ORDER GRANTING PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF

The hearing on the Petition for Writ of Mandate and Injunctive Relief and Attorneys Fees filed by the petitioners, Californians for Alternatives to Toxics and the Environmental Protection Information Center, was held on November 15, 2001 in Department 301 of the San Francisco County Superior Court before the Honorable David A. Garcia. Sharon E. Duggan appeared as counsel for petitioners and Charles W. Getz appeared as counsel for state respondent, the California Department of Forestry and Fire Protection (CDF).

The Court has reviewed the record of the respondent's proceedings in this matter, the briefs submitted by counsel, and the arguments of counsel; the matters having been submitted for decision, the Court finds as follows:

1. The Court is required to consider whether Respondent CDF committed a prejudicial abuse of discretion in its adoption and certification of the Vegetation Management Program (ãVMPä) and its Environmental Impact Report (ãEIRä). The purpose of an EIR ãis to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicated alternatives to such a project.ä (Laurel Heights Improvement Assân v. Regents of the University of California (ãLaurel Heights Iä) (1980) 47 Cal.3d 376, 391.) The EIR is ãthe heart of CEQAä and provides an ãenvironmental Îalarm bellâ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.ä (Id., 392.) CEQA compliance is ãan integral part of any public agencyâs decision making process.ä (Pub. Res. Code ¤21006.)

Thus, ã[i]n reviewing actions under CEQA, Public Resources Code ¤21168.5 provides that a courtâs inquiry Îshall extend only to whether there was a prejudicial abuse of discretion. Abuse 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.â Thus, the reviewing court Îdoes not pass upon the correctness of the EIRâs environmental conclusions, but only upon its sufficiency as an informative document.â [Citations.].ä (Laurel Heights I, 47 Cal. 3d at 392.) To ensure that the purposes of CEQA are carried out, courts ãcan and must . . . scrupulously enforce all legislatively mandated CEQA requirements.ä (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) ãWhen the information requirements of CEQA are not complied with, an agency has failed to proceed in Î a manner required by lawâ and has therefore abused its discretion. [Citations.]ä (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118.) The Court finds a prejudicial abuse of discretion as follows.

2. CDF approved the Vegetation Management Program on June 15, 2000, and certified an Environmental Impact Statement. Petitioners filed the verified Petition for Writ of Mandate on July 14, 2000.

3. In certifying the final EIR and approving the VMP, the respondent CDF ãredlinedä the references to chemical controls and herbicides which had been set forth in the Draft EIR. By doing so, Respondent CDF argues that it eliminated the use of herbicides from the VMP. The Court finds that the redlining may have striken the discussion of herbicides, but it did not eliminate the use of herbicides. Respondent CDF had a duty to evaluate and consider the use of chemical controls because the use of herbicides was part of the program as defined in the Draft EIR, and CDF had an obligation to respond to concerns about their use. (County of Inyo v. City of Los Angeles (1977) 81 Cal.App.3d 185, 192-193; Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945.) CDF also had an obligation to evaluate the use of herbicides because the record establishes that participants in the VMP have and will continue to use herbicides in conjunction with their participation in the VMP. (See, e.g., AR 26, 132-133, 146, 148, 150-151, 166, 174, 194, 280.) CDF further had an obligation to consider alternatives to the use of herbicides as a tool or component of vegetation management. (See, e.g., AR 1384.) Respondent CDF did not adequately evaluate and include consideration of the use of herbicides as an independent tool of vegetation management (see, e.g.,AR 423), as a component to be used with other tools, such as the first step for prescribed burns (see, e.g., Ar 279), or as a maintenance measure which follows the implementation of a variety of vegetation management methods (see, e.g., AR 194).

4. Respondent CDF's claim that it has no intention of using herbicides does not adequately remedy the failure to address the concern about the effect of the use of herbicides, as the VMP is not limited to CDF activities. (See, e.g., AR 814.) Respondent CDF funds others to conduct vegetation management activities. There is no evidence in the record which establishes that CDF will not fund or pay for the use of herbicides. Further, it is clear from the record that CDF holds out the option to use herbicides, based upon the use of a negative declaration as the environmental review document. (AR 17.) A negative declaration for use of herbicides is not proper if the program EIR does not fully evaluate the impacts associated with herbicides. (Cal. Code Regs. tit. 14 ¤15168; Practice Under the California Environmental Quality Act, Cont. Ed. Bar, ¤11.11, p. 436.

5. Respondent CDF's argument that it has no duty to evaluate the significant adverse effects of herbicide use because the environmental review for the registration of herbicides as a certified program under Pub. Res. Code ¤21080.5 provides the required review is not a supportable defense. CDF had an obligation to evaluate and disclose the potential for significant environmental effects from the use of herbicides as in integral part in its statewide vegetation management program and as a reasonably foreseeable future activity of applicants for funds under VMP. CDF did neither. Respondent CDF had an obligation to include in the EIR whatever analysis it relied upon for the effects from use of herbicides. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 727.) As the record provides no evidence of, or citation to, any environmental review developed for the registration process referred to by the respondent CDF, the Court cannot assess whether such an analysis could constitute adequate environmental review for the VMP.

6. Respondents CDF also failed to adequately evaluate other significant adverse effects of the VMP, including impacts upon special status and other plant populations, non-perennial tributaries, vegetation conversion and the spread of noxious weeds, effects on soils and erosion from prescribed fire, and impacts upon wildlife and fisheries. (See, e.g.,AR 20, 43, 85, 93, 111,140, 142, 208-209, 224, 232, 1384.)

7. By failing to adequate address impacts from herbicide use and other elements of the VMP, Respondent CDF failed to consider reasonable alternatives, and failed to adequately mitigate for significant adverse effects upon the environment. (see, e.g., AR 16, 1384.)

8. Respondent CDF also failed to properly respond to comments, including providing response to the cumulative impacts of the VMP from herbicide use and the need to consider alternatives. (See, e.g.,AR 20, 28, 183, 1382-1391.)

9. Respondent CDF has conceded that its findings are erroneous. The findings on mitigation of herbicide use are not supported by the evidence and are inadequate. (CDF Memo at 14:26-15:1.)

10. Respondent CDF also failed to adopt an adequate mitigation monitoring plan by failing to include adequate measures to ensure that impacts from herbicide use would be evaluated and mitigated as required by law. (See, e.g., AR 336,337, 340-343.)

Based upon the above findings, the COURT ORDERS AS FOLLOWS:

1. The Petition for Writ of Mandate and Complaint for Injunctive Relief and Attorneysâ Fees is granted. Judgment in favor of the Petitioners shall be entered.

2. A peremptory writ of mandate directed to Respondent CDF shall issue under seal of this Court, ordering Respondent CDF to set aside its approval of the VMP and certification of its EIR, within 30 days of the date of notice of entry of judgment is served.

3. Respondent CDF shall file a return to the Peremptory Writ of Mandate within 15 days after completing the proceedings in paragraph 2.

4. An injunction of the Vegetation Management Program is GRANTED at this time as the Petitioners have established a prejudicial abuse of discretion, and have provided adequate evidence of the irreparable harm that may occur as a result of the VMP as it currently exists.

5. Petitioners are awarded their costs of suit. The Court reserves jurisdiction to award attorneysâ fees pursuant to any properly and timely filed motion by Petitioners.

DATED: 11/29/01

_________________________________

HONORABLE DAVID A. GARCIA

Judge of the Superior Court