Alert: California Appellate Courts Split on the Constitutional Limits on Local Tree Cutting Regulations
February 25, 2004
On February 17th, California's Sixth District Court of Appeal issued an opinion invalidating the local regulation of timber operations and calling into question the validity of local laws, such as Napa County’s Measure O, that attempt to prohibit timber removal in certain setback areas. Big Creek Lumber Co. v. County of Santa Cruz, 2004 WL 293041 (Cal. App. 6 Dist., Feb. 17, 2004). The court held that various county ordinances limiting tree cutting – including a county ordinance that prohibited timber harvesting within specified riparian corridors – were expressly preempted by state forestry law and were therefore invalid.
The court disagreed with the 1995 opinion of the First District Court of Appeal in Big Creek Lumber Co. v. County of San Mateo, 31 Cal.App.4th 418. There, the court held that local governments could regulate the location, but not the manner, of timber operations, and that, although the state had exclusive authority to determine how timber was harvested, local governments could regulate where timber was harvested. The new Sixth District ruling in Santa Cruz found the First District's analysis to be a distinction without a difference, pointing out that by forbidding logging in certain locations, the local regulations were “regulating the conduct of timber operations” in the most fundamental way imaginable – by prohibiting them.
This type of local regulation is impermissible, the court explained, because state law confers authority for watercourse protection in connection with timber harvesting to the State Forestry Board, which then adopts district forest practice rules and regulations, including riparian setbacks. Santa Cruz’s local ordinances banned certain logging activities that were allowable under state law and, as such, the local law conflicted with state law and was therefore “expressly preempted” by the state.
The decision creates a split of authority among the California Appellate Districts, increasing the likelihood that the issue will eventually be reviewed and resolved by the California Supreme Court. Until that happens, the new Santa Cruz case calls into question the validity of local regulations that establish setbacks for timber operations. In Napa County, one such local measure will appear on next week’s ballot as an initiative: Measure O, which prohibits timber cutting in designated setbacks of varying distances up to 1000 feet from streams, wetlands and neighboring residences.
The Santa Cruz decision has significant implications outside of the traditional "timber harvest" context because of the increasing trend by local governments to adopt measures (or for citizen groups to propose initiatives) that limit tree cutting in designated riparian or other setback areas. This case stands for the proposition that, when such measures intrude into the areas governed by state forestry law, they will be invalid under the constitutional doctrine of preemption. Moreover, if the voters in Napa County adopt Measure O in March 2004, the Santa Cruz decision raises fresh questions about its legal validity.
The Environmental Law Department of Farella Braun + Martel LLP is among the largest and most experienced in the nation, with attorneys specializing in environmental, natural resources and land use compliance counseling, regulatory representation and litigation. With offices in San Francisco and the Napa Valley and a full array of business transactional, regulatory and litigation practices, we are also considered the premier firm for legal services to California's wine industry. Please contact the attorneys listed below, or any of our environmental law specialists, for more information.
Skip Spaulding, sspaulding@fbm.com
Katherine Philippakis, kp@fbm.com