In a case closely watched by cities and counties, a sharply divided California Supreme Court has ruled that counties have the authority to prohibit logging on private land.

In a 4-3 decision, the state's high court upheld two Santa Cruz County logging ordinances and stood behind a 1995 appellate court ruling that said the state Forest Practice Act is not the sole authority on commercial timber operations.

The decision was a relief to local governments, which feared a reverse ruling would impinge on local land use authority. Instead, the court ruled against logging and property rights advocates that sought to minimize local regulation.

Timber interests and property rights advocates argued that the Forest Practice Act pre-empted local authority. But Fran Layton, an attorney who argued the county's case at the state Supreme Court, said the court recognized that the state law did not override local zoning authority.

"What's important is the court's recognition of the pre-emption principles. When, as here, you have an area that has historically been regulated by local government, there is a presumption against pre-emption," Layton said. "It goes beyond logging. It goes right to the heart of the zoning power of local government. It is the responsibility of local government to prevent land use conflicts through zoning."

In the majority opinion, Justice Kathryn Werdegar wrote, "[I]n many places where it addresses timberland zoning, general state forestry law expressly preserves and plainly contemplates the exercise of local authority. The actual designation of TPZ's [timber production zones], for example, is left to local action." Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan joined Werdegar.

In a dissenting opinion, Justice Carlos Moreno asserted, "The majority pulls an interpretive rabbit out of a statutory hat." Moreno, who was joined by Justices Marvin Baxter and Joyce Kennard, wrote that the Forest Practice Act's "pre-emption provision speaks in terms that are expansive enough to leave no doubt that the Legislature intended to displace all local rules, ordinances and resolutions specifically regulating timber operations."

Environmentalists and timber companies have fought about logging in the Santa Cruz Mountains of Santa Cruz, Santa Clara and San Mateo counties since at least the 1960s. In fact, local brakes on logging in the Santa Cruz Mountains were partly responsible for adoption of the Forest Practice Act (FPA) in 1973 — and major amendments in 1982, when the Legislature strengthened the FPA to forbid counties from regulating "the conduct of timber operations." At the same time, the state adopted the Timberland Productivity Act (TPA), which seeks to place all qualifying timberland in TPZ's — zones that restrict land use to the growing and harvesting of trees in return for reduced property taxes.

The FPA, however, addresses the conduct of logging, not the location, and in 1995, the First District Court of Appeal upheld a San Mateo County ordinance mandating a 1,000-foot buffer between timber operations and residences (see CP&DR Legal Digest, February 1995). That case, Big Creek Lumber Co. v. County of San Mateo, 31 Cal.App.4th 418, bolstered local governments, including Santa Cruz County, which in 1999 adopted several ordinances affecting timber harvesting.

So Davenport-based Big Creek Lumber returned to court. In 2004, the company won when the Sixth District Court of Appeal ruled that the First District was wrong in Big Creek v. San Mateo and that there was no difference between the how and the where of timber operations (see CP&DR Legal Digest, April 2004). But the timber company's victory was short-lived, as the state Supreme Court held that the 1995 ruling was correct.

The state Supreme Court decided the validity of two Santa Cruz County ordinances. One is a zoning ordinance that prohibits commercial logging except on land zoned for timber production, mineral extraction, or parks, recreation and open space. The second ordinance requires helicopter staging, loading and servicing facilities associated with logging to be located on land zoned for timber harvesting or on an adjacent parcel, and within the boundaries of a timber harvest plan.

The appellate court ruled that the county was regulating the conduct of timber harvesting in the most extreme way — by prohibiting logging outright. But in a decision that cites Big Creek v. San Mateo at length, the state Supreme Court disagreed. (Interestingly, Justices Chin and Corrigan, who were in the majority, were on the First District panel that decided Big Creek v. San Mateo. The lumber company asked the judges to recuse themselves, but they declined to do so.)

The state Supreme Court determined that there is a difference between the how and the where of logging, and that the FPA and TPA contemplate that local officials may determine where timber harvesting occurs.

"Certainly, neither the TPA nor the FPA suggests localities are restricted in what uses they may prohibit outside TPZ zones," Justice Werdegar wrote, citing Big Creek v. San Mateo. "‘Nowhere in the statutory scheme,' in fact, ‘has the Legislature expressly prohibited the use of zoning ordinances.'"

Werdegar noted that the Legislature added Public Resources Code § 4516.5(d) to the FPA during the same session that it enacted the TPA. "That the legislature would, in the same session, include in one general forestry statute numerous provisions that rely upon local zoning authority and when amending another general forestry statute forbid localities' exercise of such authority seems unlikely," Werdegar wrote.

"Plaintiffs' overriding concern appears to be that localities may by locational zoning prohibit timber harvesting altogether," Werdegar continued. "The ordinance before us does not have that effect, nor does it appear that any county has attempted such a result. … To require that commercial timber harvesting occur on land in a ‘timberland production' or other specified zone is no more a ban on timber harvesting that a regulation requiring that industrial land uses occur on land zoned "industrial" is a ban on factories."

Justice Moreno took exception to this point in the dissenting opinion, writing that the court's distinction between how and where "provides a roadmap for those who would use technical artifices to evade the letter and spirit of the FPA."

"I doubt," Moreno continued, "that it [the Legislature] intended to create a cottage industry in the drafting of local ordinances that appear to regulate only where timber operations may occur, while in actual practice directing how these operations may take place."

Layton, the county's attorney, said Moreno arrived at his conclusion by assuming that the county prohibited logging. But the lawsuit was a facial challenge of ordinances, not a challenge to the county's denial of a particular timber harvest, she noted. "If you want to log, rezone to the appropriate zone, which is timberland production," she said. State law requires the county to rezone land that qualifies, and the county has done so since it adopted the ordinances in question, she said.

Big Creek owner Bud McCrary told the San Jose Mercury News that the decision puts 60,000 acres off limits to loggers, a figure that county officials disputed.

The Case:
Big Creek Lumber Co. v. County of Santa Cruz, No. S123659, 06 C.D.O.S. 5802, 2006 DJDAR 8572. Filed June 29, 2006.
The Lawyers:
For Big Creek: Craig Stewart, Jones Day, (415) 626-3939.
For the county: Fran Layton, Shute, Mihaly & Weinberger, (415) 552-7272.