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Filed 3/18/04
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

PACIFIC LUMBER COMPANY et al.,

Plaintiffs
and
Respondents,

A102399
v.

CALIFORNIA STATE WATER
(Humboldt County
RESOURCES CONTROL BOARD,
Super. Ct. No. DR010860)

Defendant and Appellant.

Does the Forest Practice Act establish an exclusive regulatory framework that
precludes other agencies from enforcing the laws they are charged with administering
when logging activities implicate those laws? We conclude that it does not and that it
was error to issue a writ of mandate preventing the California State Water Resources
Control Board from enforcing water quality protection measures against a timber
company.

The Pacific Lumber Company (Pacific Lumber) owns property in the Headwaters
Forest. It obtained approval from the California Department of Forestry and Fire
Protection for an amended Timber Harvest Plan authorizing it to harvest timber along the
South Fork of the Elk River. Before it could begin, however, the California State Water
Resources Control Board (State Water Board) issued an order requiring Pacific Lumber
to monitor water quality in the Elk River. Pacific Lumber sought a writ of mandate, and

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts III and IV.

1

the trial court issued the writ, holding that the State Water Board lacked jurisdiction to
enforce water quality laws against Pacific Lumber. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND

In the mid-1990's, the Elk River Timber Company (predecessor in interest to
Pacific Lumber) planned to log approximately 700 acres of redwood forest along the
South Fork of the Elk River, in the Headwaters Forest in Humboldt County. In
California, all timber harvesting is regulated by the Z'berg-Nejedly Forest Practice Act of
1973 (Forest Practice Act). (Pub. Resources Code, งง 4511-4628.) Under the Forest
Practice Act, no timber harvesting can occur until a Timber Harvest Plan (THP) has been
submitted and approved by the California Department of Forestry and Fire Protection
(Department of Forestry). (Pub. Resources Code, ง 4581.)

On December 31, 1997, the Elk River Timber Company submitted a proposed
THP to the Department of Forestry. Because of previous logging along the North Fork of
the Elk River, the Elk River had been classified as an "impaired water body" by the
responsible regional water board, the Regional Water Quality Board, North Coast Region
(Regional Water Board). (See 33 U.S.C. ง 1313, subd. (d).) Consequently, when the Elk
River Timber Company submitted a proposed THP for the South Fork of the Elk River,
the Regional Water Board submitted comments to the Department of Forestry
recommending a water quality monitoring program. (Public Res. Code, ง 4582.6,
subd. (a).) The Elk River Timber Company's registered professional forester agreed
generally with this recommendation. On August 24, 1998, the Department of Forestry
approved the proposed THP (THP 520). No formal water quality monitoring program
was incorporated, but Elk River Timber Company agreed to carry out voluntary
monitoring.

The next month, the Legislature passed A.B. 1986,1 which authorized public
acquisition of the land that is now the Headwaters Forest Preserve. A.B. 1986 provided

1 Assem. Bill No. 1986 (1997-1998 Reg. Sess.), Stats. 1998, ch. 615.

2

funding to carry out the Headwaters Agreement, an agreement between the state and
federal governments and Pacific Lumber that would allow acquisition from Pacific
Lumber of 5,600 acres of old-growth forest and formation of the government-owned
Headwaters Forest Preserve. (See Coho Salmon v. Pacific Lumber Co. (N.D.Cal. 1999)
61 F.Supp.2d 1001, 1005.) The land covered by THP 520 was not included in the
Headwaters Forest Preserve; instead, as part of the Headwaters Agreement, Pacific
Lumber acquired it from the Elk River Timber Company. THP 520 remained in effect
and authorized timber harvesting on the 705 acres known as the "Hole in the
Headwaters."

Because of limits on its access to the Hole in the Headwaters, Pacific Lumber
submitted an amendment to THP 520 that would allow it to use helicopters to remove
trees. The Department of Forestry initially approved the amendment as a "minor
amendment" without public review, but a private lawsuit resulted in a preliminary
injunction that required the proposed amendment to be resubmitted as a "major
amendment" subject to a public review process.

The Regional Water Board participated in the public review process and submitted
comments. It recommended that THP 520 be further amended to provide for an
evaluation of pre-timber harvest water conditions and ongoing water quality monitoring.
The Department of Forestry declined to adopt the Regional Water Board's
recommendations, and on March 6, 2001, it approved the amendment to THP 520
without a water quality monitoring requirement or survey of initial conditions.

The Forest Practice Act authorizes the State Water Board to appeal Department of
Forestry THP approvals to the State Board of Forestry. (Pub. Resources Code, ง 4582.9.)
The Regional Water Board asked the State Water Board to take an appeal, but the State
Water Board chose not to do so.

The Regional Water Board then issued its own order requiring water quality
control monitoring. The Regional Water Board's order required Pacific Lumber to
establish five monitoring stations along the South Fork of the Elk River, and required in-
stream trend monitoring, timber harvest plan compliance monitoring, and stream crossing

3

monitoring. Pacific Lumber appealed to the State Water Board, which held a series of
hearings, vacated the Regional Water Board's order, and issued its own order imposing
water monitoring requirements. The State Water Board order reduced the number of
monitoring stations required to two, one above and one below the area where timber
harvesting would occur. It also required monthly visual inspections of watercourse
crossings during winter.2

Pacific Lumber filed a petition for writ of mandamus, seeking to prevent the State
Water Board order from taking effect. It argued that the State Water Board order was
unlawful because it was precluded both by the Department of Forestry's exclusive
jurisdiction over timber harvesting issues and by the State Water Board's failure to take
an appeal from the approval of the amendment to THP 520. The State Water Board
argued that its jurisdiction over water quality issues was concurrent, and that when timber
harvesting operations affected water quality, it was authorized to issue its own orders

2 During the administrative process, both the United States Environmental
Protection Agency (EPA) and the Department of Forestry weighed in in support of
additional monitoring requirements. When the State Water Board was considering the
appeal from the Regional Water Board order, the EPA wrote, "EPA believes that water
quality monitoring, specifically for turbidity, is more than reasonable in this instance.
[ถ] Monitoring in conjunction with [THP 520] is appropriate for several reasons. The
planned timber harvest is a major operation with significant potential to affect water
quality adversely. The South Fork Elk River supports sensitive beneficial uses, including
domestic water supply and habitat for fish listed as threatened under the federal
Endangered Species Act. An adjacent watershed, the North Fork Elk River, has
experienced severe water quality degradation during a period of recent timber harvesting.
The Elk River has been listed as impaired under Section 303(d) of the Clean Water Act
due to excessive sedimentation . . . . Clearly, monitoring designed to detect possible
adverse water quality effects during timber harvesting, especially impacts related to
sediment, is appropriate in this situation."

The Department of Forestry reviewed a draft of the State Water Board order and
offered minor suggestions, while acknowledging its belief that the state and regional
orders did not intrude on Department of Forestry jurisdiction: "[The Department of
Forestry] has always acknowledged and supported the Regional Water Quality Control
Board's authority to set water-monitoring requirements." The Department of Forestry
concluded that the proposed State Water Board order was "well thought out."

4

regulating those impacts. After a hearing, the trial court held that the Department of
Forestry's jurisdiction was exclusive, and it granted Pacific Lumber's petition.
DISCUSSION
I.
Public Resources Code Section 4514 Permits the State Water Board to
Regulate Timber Harvest Impacts

On appeal following the trial court's decision on a petition for a writ of
mandamus, we review questions of law and issues of statutory interpretation de novo.
(Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129; see
International Federation of Professional & Technical Engineers v. City and County of
San Francisco (1999) 76 Cal.App.4th 213, 224.)

The starting point for our analysis is Public Resources Code section 4514,3 which
provides: "No provision of this chapter or any ruling, requirement, or policy of the
[Forestry] board is a limitation on any of the following: [ถ] (a) On the power of any city
or county or city and county to declare, prohibit, and abate nuisances. [ถ] (b) On the
power of the Attorney General, at the request of the board, or upon his own motion, to
bring an action in the name of the people of the State of California to enjoin any pollution
or nuisance. [ถ] (c) On the power of any state agency in the enforcement or
administration of any provision of law which it is specifically authorized or required to
enforce or administer. [ถ] (d) On the right of any person to maintain at any time any
appropriate action for relief against any private nuisance as defined in Part 3
(commencing with Section 3479) of Division 4 of the Civil Code or for any other private
relief." (Emphasis added.)

On its face, Public Resources Code section 4514, subdivision (c) directly
addresses the inter-agency issue. It provides that notwithstanding orders of the
Department of Forestry (such as the approval of a THP or THP amendment), other state
agencies may continue to enforce those laws entrusted to them. The other subdivisions of
section 4514 reinforce the notion that the Forest Practice Act is not the sole means of

3 Stats. 1973, ch. 880, ง 4, p. 1615.

5

regulating the impacts of timber harvesting activities. Subdivisions (a), (b), and (d)
authorize public prosecutors and individual citizens to bring actions if and when
warranted. Under section 4514, timber companies must comply with Department of
Forestry directives and all other applicable laws.

Public Resources Code section 4514 mirrors Water Code section 13002, a
provision that underlines the Legislature's intent to provide for concurrent, overlapping
jurisdiction. Water Code section 13002 provides, "No provision of this division or any
ruling of the state board or a regional board is a limitation: [ถ] (a) On the power of a city
or county or city and county to adopt and enforce additional regulations, not in conflict
therewith, imposing further conditions, restrictions, or limitations with respect to the
disposal of waste or any other activity which might degrade the quality of the waters of
the state. [ถ] (b) On the power of any city or county or city and county to declare,
prohibit, and abate nuisances. [ถ] (c) On the power of the Attorney General, at the request
of a regional board, the state board, or upon his own motion, to bring an action in the
name of the people of the State of California to enjoin any pollution or nuisance.
[ถ] (d) On the power of a state agency in the enforcement or administration of any
provision of law which it is specifically permitted or required to enforce or administer.
[ถ] (e) On the right of any person to maintain at any time any appropriate action for relief
against any private nuisance as defined in the Civil Code or for relief against any
contamination or pollution." Thus, the Department of Forestry's jurisdiction does not
foreclose the State Water Board from regulating water quality, and the State Water
Board's jurisdiction does not foreclose the Department of Forestry from regulating timber
harvesting. The State Water Board cannot, for example, prevent the Department of
Forestry from approving a THP based on water quality impacts. Public Resources Code
section 4514 and Water Code section 13002 demonstrate an intent to grant the State
Water Board concurrent jurisdiction with other entities. (Cf. People v. City of Los
Angeles (1958) 160 Cal.App.2d 494, 503.)

Public Resources Code section 4514, subdivision (c) authorizes the order
challenged here. The State Water Board and regional water boards are expressly

6

entrusted with administering and enforcing California's Porter-Cologne Water Quality
Control Act (Water Quality Act). (Wat. Code, งง 13001, 13000 et seq.) Under the Water
Quality Act, both the Regional Water Board and State Water Board may require water
quality monitoring reports. (Id. งง 13267, subd. (b)(1),4 13320.)5 In this case, these two
boards issued their water quality monitoring orders pursuant to that authority. Water
Code section 13267 had been in place for three years when the Legislature passed Public
Resources Code section 4514. We assume that when the Legislature enacts new laws, it
is "aware of existing related laws and intend[s] to maintain a consistent body of rules."
(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199.) We will not assume
lightly that the Legislature intended to repeal or limit the State Water Board's power,
particularly when an express contrary intent appears on the face of Public Resources
Code section 4514, subdivision (c). Because the State Water Board is expressly
authorized to issue a monitoring order, section 4514, subdivision (c) obligated Pacific
Lumber to comply with that order in addition to the terms and conditions of THP 520.

This situation in which activities are subject to the overlapping and concurrent
jurisdiction of multiple agencies is not unique. In Orange County Air Pollution Control
Dist. v. Public Util. Com. (1971) 4 Cal.3d 945, our Supreme Court addressed a dispute
over regulation of the construction of two electric generating units. Southern California

4 Stats 1969, ch. 482, ง 18, p. 1064.

5 Under Water Code section 13267, subdivision (b)(1), "the regional board may
require that any person who has discharged, discharges, or is suspected of having
discharged or discharging, or who proposes to discharge waste within its region, or any
citizen or domiciliary, or political agency or entity of this state who has discharged,
discharges, or is suspected of having discharged or discharging, or who proposes to
discharge, waste outside of its region that could affect the quality of waters within its
region shall furnish, under penalty of perjury, technical or monitoring program reports
which the regional board requires." Under Water Code section 13320, parties affected by
regional water board actions are permitted to petition the State Water Board for review.
(Wat. Code, ง 13320, subd. (a).) On review, the State Water Board may substitute its
own action for that of a regional water board, and in so doing, "is vested with all the
powers of the regional boards under [the Porter-Cologne Water Quality Control Act]."
(Wat. Code, ง 13320, subd. (c).)

7

Edison Company sought construction approval from the Orange County Pollution
Control District (Pollution Control District) and the Public Utilities Commission (PUC).
The Pollution Control District denied approval, concluding that the plants' emissions
would exceed allowable limits. (Id. at pp. 949-950.) The PUC granted approval and
ordered immediate construction, asserting paramount jurisdiction. (Id. at p. 950.) The
Supreme Court reversed. It held, "We conclude that the Legislature has established one
statutory scheme for the general regulation of public utilities, another for the general
regulation of air pollution. . . . [T]he [PUC] must share its jurisdiction over utilities
regulation where that jurisdiction is made concurrent by another (especially a later)
legislative enactment." (Id. at pp. 953-954.)

So it is here. The Legislature has established one statutory scheme for the
regulation of timber harvesting and another for the maintenance of water quality. Where
logging activities implicate water quality issues, a timber company must comply with
requirements imposed by the State Water Board in addition to the Department of
Forestry. The exclusivity of PUC jurisdiction is even more well-established and clear cut
than that of the Department of Forestry (see San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 924); if utilities matters can be subjected to concurrent
regulation in the absence of a statute expressly providing for concurrent jurisdiction, then
forestry matters can certainly be subjected to concurrent regulation in the presence of two
statutes expressly providing for concurrent jurisdiction.

Pacific Lumber relies on a Ninth Circuit case, Resource Inv., Inc. v. U.S. Army
Corps of Eng'rs. (9th Cir. 1998) 151 F.3d 1162 (Resource Investments), to argue that the
State Water Board should not be permitted to regulate the impacts of logging on water
quality. In Resource Investments, a private entity sought approval from county
authorities and from the federal Army Corps of Engineers (Army Corps) for construction
of a landfill that would affect wetlands. Although county officials issued permits, the
Army Corps denied approval. (Id. at p. 1165.) The Ninth Circuit reversed the Army
Corps's decision based on its reading of the Clean Water Act (33 U.S.C. งง 1341-1346)
and the Resource Conservation and Recovery Act (42 U.S.C. งง 6941-6949a). These

8

laws contained no provisions resolving whose authority should control in matters
implicating both EPA (and by delegation state and county official) authority over waste
management and Army Corps authority over navigable waters. The Ninth Circuit
concluded that these statutes did not create concurrent, overlapping jurisdiction and were
not intended to require landfill construction projects to obtain permit approval from both
county officials and the Army Corps. (Id. at p. 1169.) Instead, it concluded that
exclusive jurisdiction for garbage disposal regulation should rest with the EPA and its
authorized state and local delegates. (Ibid.)

Resource Investments demonstrates that a legislative body may choose to allocate
exclusive jurisdiction to one agency rather than another in matters that might otherwise
implicate two agencies' jurisdiction. However, the statutory schemes at issue there bear
no resemblance to the statutory schemes at issue here. As noted, they contain no
provisions parallel to Public Resources Code section 4514 and Water Code
section 13002, which each explicitly provide for concurrent jurisdiction. In addition, the
agency conducting additional review in Resources Investment, the Army Corps, had very
limited expertise in the subject it was being asked to regulate, garbage disposal.
(Resource Investments, supra, 151 F.3d at p. 1169.) In contrast, the State Water Board
has superior expertise in evaluating the need for water quality monitoring. Consequently,
Resource Investments is not persuasive here.

Pacific Lumber summarily argues that Public Resources Code section 4514 did
not authorize the State Water Board to regulate water quality issues arising from Pacific
Lumber's logging activities because the State Water Board was not "specifically
authorized" to override an approved Timber Harvest Plan that it had not appealed. (See
Pub. Resources Code, ง 4514, subd. (c).) This reading misconstrues the statute. The
phrase "specifically authorized" in section 4514 requires only express authorization for
the "enforcement or administration of any provision of law" entrusted to the State Water
Board, such as the Water Quality Act. Under section 4514, an agency need only be
"specifically authorized" to enforce a particular law. Once it is, section 4514 itself

9

provides authority for the agency to do so notwithstanding any act or order of the
Department of Forestry.

Under Pacific Lumber's reading, Public Resources Code section 4514, which
provides, "No provision of this chapter or any ruling, requirement, or policy of the board
is a limitation on any of the following . . . ," including the power of state agencies to
enforce laws, is a limitation on the power of state agencies to enforce laws, absent some
separate statutory provision specifying that the agency's authority extends to overruling
Department of Forestry actions. In other words, according to Pacific Lumber, unless the
Legislature amends the Water Code to expressly authorize the State Water Board to
overrule Department of Forestry orders, section 4514 limits the State Water Board and
prevents it from enforcing the Water Quality Act. This interpretation turns section 4514
on its head. We decline to interpret a section that provides that Department of Forestry
rulings do not limit other agencies' granted powers as doing precisely the opposite and
limiting their granted powers.

Pacific Lumber's interpretation is also inconsistent with Public Resources Code
section 4514.3. That section provides, "Timber operations conducted pursuant to this
chapter are exempt from the waste discharge requirements of Article 4 (commencing with
Section 13260) of Chapter 4 of Division 7 of the Water Code as long as both the federal
Environmental Protection Agency and the State Water Resources Control Board certify
after January 1, 2003, that the provisions of this chapter constitute best management
practices for silviculture pursuant to Section 208 of the Federal Water Pollution Control
Act." (Pub. Resources Code, ง 4514.3, subd. (a), emphasis added.) Section 4514.3
demonstrates that the Legislature knows how to specify that timber operations are exempt
from other laws when it so intends.6 Of greater significance, it establishes conditions for
exempting timber operations from Article 4 of Chapter 4 of Division 7 of the Water

6 Public Resources Code section 4516.5 is of similar import. That section allows
counties to offer suggestions for timber rules and regulations, but otherwise preempts
them from regulating timber operations. (Pub. Resources Code, ง 4516.5, subds. (a), (d);
see Big Creek Lumber Co. v. County of Santa Cruz (2004) 115 Cal.App.4th 952.)

10

Code, which includes Water Code section 13267, the provision at issue here. Given that
Public Resources Code section 4514.3 exempts timber operations from Water Code
section 13267 once certain conditions are met, it would be anomalous to interpret a more
general provision as silently creating a blanket exemption even before those conditions
have been met.7 In light of Public Resources Code section 4514.3, we do not interpret
Public Resources Code section 4514 as exempting Pacific Lumber from investigation of
water quality by the State Water Board under Water Code section 13267.

Pacific Lumber further argues that we should disregard Public Resources Code
section 4514 because the Forest Practice Act was intended to be a "comprehensive
system of regulation [for the] use of all timberlands." (Pub. Resources Code, ง 4513.)
Pacific Lumber points to regulations adopted by the State Board of Forestry that address
water quality control issues (Cal. Code Regs., tit. 14, งง 916-916.12; see Pub. Resources
Code, ง 4562.7) and provisions that allow the Regional Water Board to consult on THPs
(Pub. Resources Code, ง 4582.6) while reserving "final authority" to the Department of
Forestry "to determine whether a timber harvesting plan is in conformance with the rules
and regulations of the [State Board of Forestry] and with [the Forest Practice Act]" (Pub.
Resources Code, ง 4582.7, subd. (e)). Pacific Lumber also points to the head-of-agency
appeal process (Pub. Resources Code, ง 4582.9), and suggests that allowing regulation
pursuant to section 4514 would render that process irrelevant.

7 Both sides agree that the conditions necessary for the Public Resources Code
section 4514.3 exemption to apply have not been met. The EPA has declined to certify
that the Department of Forestry's Forest Practice Rules constitute "best management
practices" for silviculture, as required by section 4514.3, subdivision (a). In fact,
according to the EPA, "[t]he lack of adequate [water quality] monitoring and assessment
is one reason EPA declined to certify the Forest Practice Rules as best management
practices back in 1988, and we have reiterated this concern on several occasions since."
Given that the section 4514.3 exemption does not apply in part because Department of
Forestry regulations do not adequately ensure water quality monitoring, we see all the
more reason for not reading an exemption from water quality monitoring into the more
general provisions of Public Resources Code section 4514.

11

The Forest Practice Act comprehensively regulates timber harvesting matters.
Understandably, it and its accompanying regulations incorporate provisions that address
water quality and species habitat issues, and encourage consultation among the
Department of Forestry, state and regional water boards, and the Department of Fish and
Game. (Pub. Resources Code, งง 4551.5, 4582.6, 4582.9.) Interagency lobbying, as
happened here, allows one agency to educate another regarding matters within its
jurisdiction that have outside impacts. That input might lead to a different decision or
accommodations for impacts not otherwise accounted for by a single agency. Such
provisions recognize the fundamental reality that the environment is not a set of discrete
resources but an interdependent biosystem. The extraction of one resource may have an
impact on other resources, and another agency may be able to contribute its greater
expertise at an early stage. Provisions allowing for input do not compel the conclusion
that the Department of Forestry's jurisdiction was intended to be exclusive.

Nor does our reading of Public Resources Code section 4514 render provisions
allowing for such input, including the head-of-agency appeal process, irrelevant. Even
though an agency may retain the power to regulate separately, it has no power to deny
approval to any given THP. The head-of-agency appeal process allows the State Water
Board and Department of Fish and Game to argue for outright denial of THPs, or
modifications on matters within the exclusive jurisdiction of the Department of Forestry
and State Board of Forestry. This process is permissive, not mandatory. Nothing in
Public Resources Code sections 4582.9 or 4514 suggests that the State Water Board must
exhaust the head-of-agency appeal process before enacting its own orders.

With respect to Pacific Lumber's argument that the Forest Practice Act is
comprehensive and therefore supersedes State Water Board jurisdiction, we find it
notable that this argument was raised and dismissed in the weeks immediately preceding
passage of A.B. 227, the Forest Practice Act.8 Before passage, the State Water Board and
Department of Fish and Game each contacted bill author Edwin Z'Berg and expressed

8 Assem. Bill No. 227 (1973-1974 Reg. Sess.) Stats. 1973, ch. 880, ง 4, p. 1615.

12

concern that A.B. 227 could be interpreted to supersede their regulatory authority. In
August 1973, Z'Berg wrote the Legislative Counsel for an opinion. He noted that the
language of proposed Public Resources Code section 4514, subdivision (c) "would seem
to allow the [State Water Board] and the Regional Water Quality Control Boards to
continue regulation of waste discharges from logging activities, including soil, bark, and
other debris, whenever they affect water quality." (Assemblyman Edwin L. Z'Berg,
sponsor of A.B. 227, letter to Legislative Counsel, Aug. 6, 1973.) However, he expressed
concern that the detailed regulation of the use of streams and waterways authorized by
proposed Public Resources Code section 4562.7 "might be considered by the courts to be
such a clear expression of the Legislature as to the scope of regulations to be applied to
logging that the State Board of Forestry rules would be considered paramount." (Id. at
p. 2.) He sought confirmation as to whether his bill would "in any way limit jurisdiction
or restrict the enforcement activities of the [State Water Board], the Regional Water
Quality Control Boards or the Department of Fish and Game." (Ibid.)

The Legislative Counsel allayed these concerns. It concluded that proposed Public
Resources Code section 4562.7 would not be construed to supersede State Water Board,
regional water board, and Department of Fish and Game orders on matters within the
scope of those agencies' authority. (Ops. Cal. Legis. Counsel, No. 16456 (August 10,
1973) Forestry (A.B. 227) p. 2.) It based that conclusion, as we do, on the express
language of Public Resources Code section 4514. (Id. at pp. 3-4.) The next month, the
Forest Practice Act passed without further amendment to section 4514.

Thus, neither the permissibility of input nor the extent of State Board of Forestry
regulation alters the bottom line: each agency is responsible for final decisions regarding
the use or preservation of the natural resources within its bailiwick. The Legislature's
grant of final authority to the Department of Forestry and State Board of Forestry to
decide on THPs (Pub. Resources Code, ง 4582.7, subd. (e)) does not alter its equally
clear grant of final authority to the State Water Board to decide on water quality
monitoring (Wat. Code, งง 13267-13268). While the Forest Practice Act establishes a
comprehensive statewide program for timberlands, "the Porter-Cologne Water Quality

13

Control Act (Wat. Code, ง 13000 et seq.) establishes a comprehensive statewide program
for water quality control . . ." (United States v. State Water Resources Control Bd.
(1986) 182 Cal.App.3d 82, 109.) The Department of Forestry may permit trees to be cut,
but the State Water Board may require that when trees are cut, water quality be
preserved.9

In sum, we read Public Resources Code section 4514 as a legislative determination
that the Department of Forestry's exclusive jurisdiction over timber harvesting does not
give it exclusive jurisdiction over the effects of that timber harvesting. Instead, other
agencies may regulate the impacts of logging to the extent those impacts implicate the
substantive statutes they are charged with enforcing. Under Public Resources Code
section 4514, agencies with expertise concerning a particular resource are granted final
say concerning the use or preservation of that resource. The State Water Board cannot
reach out to forbid logging that might have negative water impacts; conversely, the
Department of Forestry cannot reach out to forbid water quality monitoring. Ultimately,
the State Water Board's judgment about what is needed to protect the Elk River must be
dispositive, not the judgment of the Department of Forestry. In the Legislature's view,
the Department of Forestry's regulation of timber harvesting does not excuse Pacific
Lumber from other agency requirements that it take steps to ensure the preservation of
other resources negatively affected by that harvesting.

9 Amicus curiae California Forestry Association dismisses Public Resources Code
section 4514 as "boilerplate." We decline to invent a boilerplate theory of statutory
interpretation that would permit us to disregard the clear meaning of a legislative
enactment. The concept of boilerplate has a place in understanding contracts, where the
language of a printed boilerplate agreement may or may not reflect the parties' actual
intent. (E.g., Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328.) In the context of
legislative acts, the concept of boilerplate has no relevance. Nothing in the language of
section 4514 indicates that it does not mean what it says, or that it should not be applied
fully to the situation at hand. At most, similar statutes like Water Code section 13002
demonstrate that when the Legislature intends a particular resolution of inter-agency
jurisdictional issues, it can and does know how to express it clearly.

14

II.
The Forestry Board's Timber Harvest Plan Does Not Estop the State Water
Board from Regulating Logging Impacts

In the alternative, Pacific Lumber argues that the State Water Board is estopped
from requiring water quality monitoring because it failed to appeal the Department of
Forestry's refusal to impose water quality monitoring. Because the application of the
doctrine of collateral estoppel is an issue of law, we review the issue de novo. (Appling
v. State Farm Mutual Auto Ins. Co. (9th Cir. 2003) 340 F.3d 769, 775; see Groves v.
Peterson (2002) 100 Cal.App.4th 659, 667; Campbell v. Scripps Bank (2000) 78
Cal.App.4th 1328, 1333 & fn. 2.)

Under the doctrine of collateral estoppel or "issue preclusion," when an issue of
ultimate fact has been determined by a valid and final judgment, that issue cannot be
relitigated between the same parties in a future lawsuit. (Ashe v. Swenson (1970) 397
U.S. 436, 443; see Dowling v. United States (1990) 493 U.S. 342, 347; Vandenberg v.
Superior Court (1999) 21 Cal.4th 815, 828.) Traditionally, collateral estoppel bars
relitigation of an issue if (1) the issue necessarily decided at the previous proceeding is
identical to the one sought to be relitigated; (2) the previous proceeding resulted in a final
judgment on the merits; and (3) the party against whom collateral estoppel is asserted was
a party or in privity with a party at the prior proceeding. (Gikas v. Zolin (1993) 6 Cal.4th
841, 849; Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230.) As the advocate of the
application of collateral estoppel, Pacific Lumber bears the burden of proof that each
prerequisite has been established. (Dowling v. United States, supra, 493 U.S. at p. 350;
Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)

However, these principal requirements presuppose that the prior proceeding is of a
type that may be accorded collateral estoppel effect. (See People v. Sims (1982) 32
Cal.3d 468, 477 (Sims), superseded by statute on another ground in Gikas v. Zolin, supra,
6 Cal.4th at pp. 851-852.) In Sims, the California Supreme Court recognized that while
collateral estoppel ordinarily arises from prior court proceedings, it may also extend to
administrative decisions. In such cases, the administrative proceeding must first be

15

evaluated to determine whether it is sufficiently judicial in nature to support an estoppel.
(Ibid.)

"Collateral estoppel may be applied to decisions made by administrative agencies
`[w]hen an administrative agency is acting in a judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate . . . .' " (Sims, supra, 32 Cal.3d at p. 479, quoting United States v. Utah Constr.
Co. (1966) 384 U.S. 394, 422 (Utah Construction), superseded by statute on another
ground in Alliant Techsystems, Inc. v. U.S. (Fed. Cir. 1999) 186 Fed.3d 1379, 1380.) In
evaluating the character of the earlier forum, "courts consider the judicial nature of the
prior forum, i.e., its legal formality, the scope of its jurisdiction, and its procedural
safeguards, particularly including the opportunity for judicial review of adverse rulings."
(Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829.) In Sims, for example, the
Supreme Court found that the administrative proceeding at issue could support a later
estoppel because it was adversarial, it provided the opportunity to subpoena, examine,
and cross-examine witnesses under oath and to present oral and written argument, a
transcript was prepared, the hearing officer issued a written statement of reasons, and the
decision itself entailed the application of a rule of law to particular facts. (Sims, supra,
32 Cal.3d at p. 480.) After the hearing, the losing party had a right to seek Superior
Court review. (Ibid.)

In contrast, the Department of Forestry's approval of a THP lacks these judicial
characteristics. It is not an adversarial proceeding. Testimony is not submitted under
oath. There is no opportunity to call or cross-examine witnesses, subpoena witnesses, or
present oral argument. No transcript is prepared. The Department of Forestry "shall
prepare and make available written responses to significant issues raised at the hearing,"
but these responses do not rise to the level of the statement of reasons and written
resolution of disputed issues of fact contemplated by Sims and Utah Construction. (See
Pub. Resources Code, ง 4582.6 [detailing procedures]; Cal. Code Regs., tit. 14, ง 1037.5

16

[same].)10 Because the THP approval hearing fails this initial test, we need not decide
whether the other requirements for collateral estoppel are met.

Pacific Lumber principally relies on Johnson v. City of Loma Linda (2000) 24
Cal.4th 61 (Johnson), but Johnson is not relevant to our inquiry. In Johnson, a city
employee was dismissed and filed a grievance. His grievance was denied in a quasi-
judicial administrative proceeding; without seeking mandamus to reverse the denial, he
filed suit. The California Supreme Court concluded that his state discrimination claims
were barred by his failure to exhaust judicial remedies. (Id. at p. 76.) However, the
administrative proceeding in Johnson involved extensive and detailed procedural
protections. (Id. at p. 72.) The issue presented here--whether the administrative
proceeding was sufficiently judicial to support an estoppel--was undisputed in Johnson;
Johnson conceded that defendant afforded him a full and fair opportunity to litigate his
case within the meaning of Sims and Utah Construction. (Johnson, at p. 71, fn. 3.)
Johnson thus sheds no light on how to apply the Sims/Utah Construction standards here.

Pacific Lumber also points to three cases that have concluded that THP approval is
quasi-judicial or adjudicatory. (Sierra Club v. State Board of Forestry (1994) 7 Cal.4th
1215, 1235; East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection
(1996) 43 Cal.App.4th 1113, 1121-1122; Environmental Protection Information Center,
Inc. v. Johnson (1985) 170 Cal.App.3d 604, 630, fn. 18.) However, each of these cases
arose in the context of determining whether such a decision was subject to review by
administrative (Code Civ. Proc., ง 1094.5) or traditional (Code Civ. Proc., ง 1085)
mandamus, and thus whether the decision was quasi-judicial or quasi-legislative. This
distinction is a very different inquiry from the one required by Sims; a decision may
qualify as more "quasi-judicial" than "quasi-legislative" for purposes of identifying the

10 We need not decide whether, had an appeal to the State Board of Forestry been
taken, that proceeding might have given rise to findings sufficient to support an estoppel.
(See Pub. Resources Code, ง 4582.9 [detailing appeal procedures].) No appeal was
taken, and no hearing ever occurred.

17

correct means of review, and yet still lack enough of the essential judicial characteristics
necessary to support an estoppel.11

One final factor militates in favor of the conclusion we reach. " `[C]ollateral
estoppel is an equitable concept based on fundamental principles of fairness.' " (White
Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754, 763, quoting Sandoval v. Superior
Court (1983) 140 Cal.App.3d 932, 941.) Its application is appropriate only when
consistent with public policy. (Vandenberg v. Superior Court, supra, 21 Cal.4th at
p. 829; Lucido v. Superior Court, supra, 51 Cal.3d at pp. 342-343.) Applying collateral
estoppel here would create significant policy difficulties.

On the one hand, a holding that the mere opportunity to review a THP and submit
comments (Pub. Resources Code, ง 4582.6) is enough to estop a regional or state water
board from enacting its own measures would effectively nullify Public Resources Code
section 4514 by implication. Neither state nor regional water boards (nor, for that matter,
the Department of Fish and Game) would be able to take any independent action to
preserve species or water quality affected by timber harvesting; all such authority for
species and water quality preservation would rest with the Department of Forestry.
Repeals by implication are strongly disfavored (Astoria Federal S. & L. Assn. v. Solimino
(1991) 501 U.S. 104, 109; Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991)
53 Cal.3d 245, 249-250); where, as here, the two statutes were enacted at the same time,
there is even greater reason not to conclude that one statute should eviscerate the other.

On the other hand, a holding that affirmatively choosing to participate in the THP
approval process, either at the Department of Forestry level or through a State Board of
Forestry appeal (Pub. Resources Code, ง 4582.9), is enough to estop the participating
agency would create perverse disincentives. It would encourage agencies to preserve

11 Moreover, two of the cases concluded that in some instances a THP approval
might be subject to the traditional mandamus applicable to quasi-legislative decisions.
(East Bay Muni. Util. Dist. v. Dep't of Forestry & Fire Prot., supra, 43 Cal.App.4th at
p. 1122, fn. 5; Environmental Prot. Info. Ctr., Inc. v. Johnson, supra, 170 Cal.App.3d at
p. 630, fn. 18.)

18

their jurisdiction by refusing to cooperate and consult on ongoing timber harvesting
projects. Such a ruling would undermine the interagency cooperation the Legislature
sought to create, and would increase the likelihood of future disputes--precisely the
opposite of the dispute-reduction and judicial economy policies underlying collateral
estoppel. (See Lucido v. Superior Court, supra, 51 Cal.3d at p. 343.)

Consequently, the Regional Water Board's participation in the THP 520 approval
process does not estop either the Regional Water Board or the State Water Board from
exercising its own independent jurisdiction to enforce the Water Quality Act.
III.
Pacific Lumber Has Waived Its Takings Argument

Pacific Lumber raises a constitutional claim on appeal. According to it, the State
Water Board's order is an unconstitutional taking. (U.S. Const., 5th Amend.; Cal. Const.,
art. I, ง 9.) Not a word was mentioned in the trial court concerning this claim; no
Takings Claim was included in Pacific Lumber's petition and complaint.

We need not reach the merits of Pacific Lumber's constitutional claim. The
general rule is that a constitutional issue must be raised at the earliest opportunity in the
trial court or it will be considered waived on appeal. (Bonner v. City of Santa Ana (1996)
45 Cal.App.4th 1465, 1476-1477 (Bonner), disapproved on other grounds in Katzberg v.
Regents of University of California (2002) 29 Cal.4th 300, 320-321; In re Tania S. (1992)
5 Cal.App.4th 728, 735; Lopez v. McMahon (1988) 205 Cal.App.3d 1510, 1520.) "The
rule that contentions not raised in the trial court will not be considered on appeal is
founded on considerations of fairness to the court and opposing party, and on the
practical need for an orderly and efficient administration of the law." (People v. Gibson
(1994) 27 Cal.App.4th 1466, 1468.)

We have discretion to address constitutional claims that raise only legal and
constitutional issues on undisputed facts in the record. (Ward v. Taggart (1959) 51
Cal.2d 736, 742 [new legal theory may be raised for first time on appeal if no new factual
issues are required to be adduced]; Bonner, supra, 45 Cal.App.4th at pp. 1476-1477 [new
constitutional issues may be raised for the first time on appeal, but only if the facts are

19

undisputed].) This is not such a claim. Pacific Lumber bases its takings claim on the
assertion that the State Water Board's order renders timber harvesting in the Hole in the
Headwaters uneconomical. Pacific Lumber's argument contains no citation to the record
in support of this proposition. The reason is clear: evidence establishing this factual
assertion was never introduced. Because this claim involves mixed factual and legal
issues, Pacific Lumber waived it by failing to develop it in the trial court. (Hepner v.
Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
IV.
The State Water Board's Order Is Supported by the Weight of the Evidence

Finally, Pacific Lumber argues that even if the State Water Board had authority to
act, the administrative record does not support the order it issued. The trial court found it
unnecessary to address this issue because of its ruling on the statutory question.
However, because we affirm the trial court's order if it is correct on any legal basis, we
must address the issue. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19,
limited on other grounds in Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 971, 944.)

In a Code of Civil Procedure section 1094.5 mandamus action challenging a State
Water Board order, "the court shall exercise its independent judgment" in evaluating the
evidence in the administrative record. (Wat. Code, ง 13330, subd. (d).) The independent
judgment standard is not equivalent to de novo review. Instead, a court "must afford a
strong presumption of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the court that the
administrative findings are contrary to the weight of the evidence." (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817.)

A water quality monitoring order is authorized if two conditions are met. First, an
order may only be issued to "any person who has discharged, discharges, or is suspected
of having discharged or discharging, or who proposes to discharge waste within its

20

region." (Wat. Code, ง 13267, subd. (b)(1).)12 Second, "[t]he burden, including costs, of
these [monitoring] reports shall bear a reasonable relationship to the need for the report
and the benefits to be obtained from the reports." (Ibid.)

The evidence in the record supports a connection between Pacific Lumber's
timber harvesting, erosion, and landslides that affect the water quality of the Elk River.
In September 1998, the Regional Water Board issued Cleanup and Abatement Order
No. 98-100 in connection with Pacific Lumber's timber harvesting along the North Fork
of the Elk River. Order No. 98-100 noted that the Department of Forestry had cited
Pacific Lumber 51 times for violations of its forest practice regulations over the previous
four years, and that "[t]hese violations of the California Forest Practice Rules resulted in
the discharge and/or threatened discharge of soil to the North Fork Elk River and its
tributaries and are violations and/or threatened violations of the waste discharge
prohibitions contained in the Water Quality Control Plan for the North Coast Region."
Order No. 98-100 relied on figures from a Pacific Lumber consultant's report that
showed a 13-fold increase in the volume of landslides on slopes harvested within the last
15 years compared with slopes harvested more than 15 years ago. Order No. 98-100
concluded that Pacific Lumber had "discharged waste into the waters of the state" in
violation of Water Code section 13304, subdivision (a). Pacific Lumber challenged
Order No. 98-100, then settled the matter. As part of the settlement, Pacific Lumber
stipulated that it would not contest the findings of Order No. 98-100 absent "significant
new evidence that discharges and threatened discharges" from Pacific Lumber's land
were lawful and would not "significantly adversely affect beneficial uses of water by
downstream property owners."

The new evidence identified by Pacific Lumber does not refute the conclusions of
Order No. 98-100. Pacific Lumber relies on its consultant's sediment source analysis

12 An order may also be issued to dischargers outside a given regional water
board's region (Wat. Code, ง 13267, subd. (b)(1)), but that situation is not involved in
this appeal.

21

(the PWA Report), which predates the settlement, and the testimony of a hydrologist,
William Conroy. Both Conroy and the PWA Report identify rainfall levels as the most
likely cause of recent major changes in landslide rates. However, Conroy agrees that
"timber harvest can increase landslide rates" and the PWA Report acknowledges that
"[b]oth road construction and harvesting have been linked to increased sediment
production and yield in the North Fork [of the] Elk River." Conroy's testimony does not
explain why landslide figures contained in the PWA Report show a statistically
significant correlation between the location of landslides depositing sediment in the
North Fork of the Elk River during 1994-1997 and those areas harvested by Pacific
Lumber in that same period. Those figures support the Regional Water Board's
conclusion in Order No. 98-100 that "[a]lthough large storm events are a significant
factor in causing the [sediment] discharges, the storm events have a much greater effect
on recently harvested areas than on older harvested areas." Conroy's testimony and the
PWA Report are consistent with the notion that while major storms can trigger landslides,
timber harvesting makes slopes much more susceptible to landslides when such storms
hit. Thus, the weight of the evidence indicates that timber harvesting under THP 520 will
increase the likelihood of sediment discharge, and that the State Water Board was entitled
to issue a monitoring order.

Pacific Lumber contends that the monitoring actually imposed is not justified by
its cost because the monitoring design is flawed. The State Water Board order requires
two new monitoring stations, one immediately upstream of the THP 520 regions and the
other immediately downstream, down from five in the original Regional Water Board
order, and significantly reduces the extent of monitoring and analysis to be done. In
support of its argument, Pacific Lumber identifies only testimony criticizing the vacated
Regional Water Board order. It points to no evidence undermining the simplified
monitoring approach adopted in the final State Water Board order. Nor does Pacific
Lumber identify the cost of this simplified monitoring or offer any basis to conclude that
the cost would exceed any benefits. Consequently, Pacific Lumber has not carried its

22

burden of establishing that the State Water Board order is unsupported by the weight of
the evidence.
DISPOSITION

The writ of mandate is reversed.

GEMELLO,
J.

We concur.

STEVENS, ACTING P. J.

SIMONS, J.

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Trial court:

Humboldt County Superior Court
Trial judge:

Hon. J. Michael Brown

Counsel for Defendant and Appellant:

Bill Lockyer, Attorney General

Richard M. Frank and Mary E. Hackenbracht, Assistant Attorneys General

Nicholas Stern, Deputy Attorney General

Counsel for Plaintiffs and Respondents:

Stoel Rives, Edgar B. Washburn, Christopher J. Carr and William M. Sloan;
Carter, Behnke, Oglesby & Bacik, John A. Behnke and Frank Shaw Bacik

Barnum & Herman, Thomas M. Herman and William F. Barnum for California
Forestry Association as Amicus Curiae on behalf of Plaintiffs and Respondents

24