An environmental group that sued the California Department of Forestry and Fire Protection over environmental review of a North Coast timber harvest lost its chance to pursue the lawsuit because it did not request a hearing within a prescribed deadline.
Guardians of Elk Creek Old Growth argued that it had more time to request a hearing because the suit was moved from Sacramento County to Mendocino County. But a unanimous three-judge panel of the First District Court of Appeal, Division Three, ruled that no time extension was warranted because all parties were notified of the change of venue.
Guardians of Elk Creek filed a lawsuit on May 3, 1999, challenging a timber harvest plan submitted by Redwood Empire Sawmills and Pacific States Industries. The timber companies, which are the real parties in interest in the suit, requested a venue change. The Sacramento County Superior Court approved the request, and on May 27, 1999, the Mendocino County Superior Court notified all parties that it had received the case file.
On August 3, 1999 — 92 days after the lawsuit was originally filed — the timber companies asked the court to dismiss the case because the environmental group had failed to comply with Public Resources Code § 21167.4, which requires a plaintiff to file within 90 days a request for a hearing. On August 11, 1999, Guardians of Elk Creek requested a hearing, but Mendocino County Superior Court Judge Vincent Lechowick dismissed the lawsuit.
Guardians of Elk Creek then appealed. The timber companies and CDF argued that the appeal was moot because the timber harvest had been completed. But the appellate court said it wanted to eliminate confusion over the case on point, Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist., (1992) 9 Cal.App.4th 644 (see CP&DR Legal Digest, October 1992). In Dunn-Edwards, which was later overturned on other grounds, the court held that a petitioner is excused from the timely requesting of a hearing if the trial court fails to notify the parties that the case has been transferred.
Guardians of Elk Creek argued that under Dunn-Edwards, the 90-day period began after the case was refiled in Mendocino County. But the appellate court disagreed.
"The date the petition was originally filed is the beginning of the 90-day period for requesting a hearing," the court ruled. "The petitioner is excused from complying with that restriction only if the receiving court fails to notify the parties that the case is on file."
Guardians of Elk Creek Old Growth, v. California Department of Forestry and Fire Protection, No. A088611, 01 C.D.O.S. 5197, 2001 DJDAR 6375. Filed June 21, 2001.
For Guardians of Elk Creek: Kimberly Burr,
For CDF: Michael Neville, deputy attorney general
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