Katzeff v. California Department of Forestry and Fire Protection 2010 Cal. App. LEXIS 98 (Cal. App. 1st Dist. Jan. 28, 2010) available at CourtWebsite
The Court of Appeal held that even when approval of an action is ministerial, a public agency may not authorize destruction of prior required mitigation without first reviewing the continuing need for the mitigation, stating the reason for its actions, and supporting it with substantial evidence.
In this case, two prior timber harvesting plans had required, as necessary mitigation for impacts resulting from the plans, that certain trees remain in place to block excessive winds. Several years passed and the timber harvesting plans expires. In a later action, the California Department of Forestry and Fire Protection (CDF) granted a conversion exemption allowing the harvesting of less than three acres of timber without environmental review for the same area of trees. Under the Forest Practices Act of 1973 (FPA) and the Forest Practice Rules, such exemptions are allowed upon determining that they are consistent with the purposes of the FPA and meeting certain regulatory requirements.
Due to the uncertainty regarding whether the mitigation was still necessary, the court found that such an exemption from environmental review was improper under CEQA and the FPA. The court held that the authorization of the destruction or cancellation of mitigation requires a review of the continuing need for the mitigation. Such review is needed regardless of whether or not the approval resulting in said destruction is ministerial. Furthermore, an agency must include a statement of the reason for the action and substantial evidence in support of the decision before destroying such mitigation.
