IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ENVIRONMENTAL PROTECTION No. $140547 INFORMATION CENTER and SIERRA CLUB, Court of Appeal, First oetit Appellate District, Case Petitioners/Respondents, Noranodaas v. + -PARTMENT OF Humboldt County CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION and Superior Court, Case CALIFORNIA DEPARTMENT OF FISH AND. | No CV990445 GAME, Respondents/Appellants. ‘THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY LLC and SALMON CREEK LLC, Real Parties in Interest/Appellants. [And three other cases.]* PALCO’S ANSWER BRIEF ON THE MERITS (EPIC) Edgar B. Washburn (#034038) Frank Shaw Bacik (#132565) Christopher J. Carr (#184076) CARTER, OGLESBY, MOMSEN & William M. Sloan (#203583) BACIK Shaye Diveley (#215602) 169 Mason Street, Suite 300 MORRISON & FOERSTER LLP P.O. Box 720 425 Market Street Ukiah, California 95482 San Francisco, California 94105 (707) 462-6694 Tel: (415) 268-7000 Fax: (707) 462-7839 Fax: (415) 268-7522 Attorneys for Real Parties in Interest/Appellants THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY LLC and SALMON CREEK LLC ¥ Environmental Protection Information Center v. California Department of Forestry and Fire Protection (A105391); United Steelworkers of America v. California Department of Forestry and Fire Protection (A104830), United Steelworkers of America v. California Department of Forestry and Fire Protection (105388). 2160546INTRODUCTION. STATEMENT OF THE CASE L. IL. m. Tv. Vv. ARGUMENT L Il. m. Iv. 02160546 TABLE OF CONTENTS Page Factual and Legal Setting. ‘The Headwaters Agreement and Related Legislatior The Administrative Proceedings. EPIC’s Petition and Trial. ‘The Court of Appeal’s Decision coh A 12 Standard and Scope of Review A. Deference Must Be Given to the State Agencies’ Decisions B. Prejudicial Error Cannot Be Presumed. C. The Legislative Mandate for the Headwaters Agreement Must Be Respected. ‘The Court of Appeal Properly Found that the SYP Complied with State Law. A. — CDF Acted Properly When It Released the SYP for Public Review .... B, The SYP Contains All Required Provisions. There Is a Final and Approved SYP D. _ CDF Did Not Prejudicially Abuse Its Discretion When Approving the SYP... DFG’s Approval of the ITP Was Proper .. A. The Court of Appeal Properly Upheld DFG’s Grant of Regulatory Assurances B. DFG Did Not Breach Its Public Trust Duties. ‘The Streambed Alteration Agreement Met the Statutory Requirements. 9 ‘The State Agencies Made Proper Findings..TABLE OF CONTENTS. (continued) Page A. — The Approval of the ITP Was Supported by Adequate Findings B. The Agencies’ Findings Complied with CEQA. 1. The Agencies Addressed All Significant Impacts. 2. The EIR/EIS Adequately Addressed Impacts to Coho C. The Streambed Alteration Agreement Was Properly Supported .. VI. The EIR/EIS Adequately Considered Cumulative Impacts. A. The EIR/EIS Properly Used the “Summary of Projections” Approach to Cumulative Impacts Analysis B. The Impacts to the Marbled Murrelet, Northern Spotted Owl and Coho Salmon Were Properly Identified and Addressed C. The EIR/EIS Addressed Activities Within the 42 Marbled Murrelet Conservation Areas 47 Deferral of Impacts Analysis to Individual THPs Was Proper...... 47 CONCLUSION, 62160546 ii