425 Manger Srarer Monisow & toxesrex cer SAN Francisco ver vous, a suanerses, CALIFORNIA 94105-2482 Teutrnows:415.268.7000 servis sunmneteveninn acsrarcacets 268.7322 Sunes constant www.moro.com November 19, 2007 Writer's Direct Contact 415.268.7860 EWashburn@mofo.com By Messenger ‘The Honorable Ronald M. George Chief Justice Associate Justices California Supreme Court 350 McAllister Street San Francisco, CA 94102-4783 Re: Environmental Protection Information Center, et al. v. California Department of Forestry & Fire Protection, et al. -No. $140547 ‘Supplemental Letter Brief Dear Chief Justice George and Associate Justices: The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC, Real Parties in Interest and Appellants (collectively “Pacific Lumber” or “Real Parties”), respond to the October 24, 2007 Order of this Court requesting additional briefing on three discrete questions, as follows: 1. With respect to the Sustained Yield Plan, what is the significance of the Director of the California Department of Forestry and Fire Prevention’s approval of “Alternative 25” with an estimated long-term sustained yield of 178.8 million board feet per year in the first decade? ‘There are two concepts embodied by the Court’s question. ‘The first is the long term sustained yield (“LTSY”) figure. LTSY is the average annual growth sustainable by the inventory of timber on the property, predicted at the end of a 100-year planning period. See Forest Practice Rules (“FPR”) § 895.1. Here, the planning period selected was 120 years. See Ct. App. Slip Op. (Dec. 12, 2006) (“Slip Op.”) at 16-17; see also 14 AIA! 63 [DFG105641-642]; 7 AJA 53D [DFG110050-054]; 10 AJA S4D [DFG109554-557]; 16 AJA 65 [DFG106142]. The LTSY figure is the long-term goal, ie., the amount of timber that will ' Pacific Lumber andthe State Agencies fled one Joint Appendix, whichis eted as'*{Volume #) ATA {Exhibit #) [Page #1.” s-2418553California Supreme Court November 19, 2007 Page Two be produced during the last decade of the planning horizon in accordance with the projected inventory, growth and harvest levels. See FPR § 913.11(b)(4). ‘The second concept is maximum sustained production (“MSP”). The MSP is the average annual projected harvest over any rolling ten-year period. It shall not exceed the LTSY estimate. Id § 1091.4.5(a); see also Slip Op. at 16-17. In other words, MSP can never exceed the harvest predicted for the last decade of the planning horizon. ‘The Sustained Yield Plan (“SYP") is to demonstrate how the submitter (Pacific Lumber) will achieve, consistent with the protection of soil, water, ait, fish and wildlife resources, maximum sustained production of high quality timber products, while giving consideration to regional economic vitality and employment during the planning horizon. See FPR § 1091.4.5(a). It establishes how the sustained yield volume can be achieved under the regulatory regime that is in place. Here, that means that volume can be achieved through timber operations that are conducted in accordance with the provisions of the SYP/Habitat Conservation Plan (“HCP”) and FPR. As pointed out in the Slip Opinion (at 17-19), the overall LTSY figure was originally calculated at 233.5 million board feet per year (“mmbf'year”), with early decade harvest levels declining, then increasing later in the 120-year planning period. See Slip Op. at 17; see also 14 AJA 63 [DFG105667-668]. However, with additional restrictions added through the SYP/HCP review process and by virtue of Assembly Bill 1986 (“AB 1986”), the LTSY was revised downward to 196.4 mmbflyear. See Slip Op. at 19; see also 10 AJA S4D [DFG109554-557). The final SYP numbers were calculated under a variety of alternative assumptions related to the spectrum of harvesting constraints considered in the HCP and AB 1986 and are discussed in the January 1999 Final Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”). See Slip Op. at 18-19; see also 5 AIA 53 [DFG109609]; 9 AJA S4B (DFG109130-135]; 22 AJA 7SA-1 [DFG103398-552]. This accounts for the different SYP numbers generated by Alternative 25 and Alternative 25a, On March 1, 1999, the Director of the California Department of Forestry and Fire Protection (“CDF”)* made his final determination as to the SYP figure. See 21 AJA 74 {CDF120762-764]. He concluded that the SYP, at the levels of harvest described in Alternative 25, was within the scope of the EIS/EIR and was the maximum amount of volume that could be harvested per year, based on a ten-year rolling average. He concluded that: “This volume reflects a range of outcomes that would be generated by prescriptions contained in the HCP during the first ten years covered by the SYP. It is recognized that the ? California Department of Forestry and Fire Protection's acronym was recently changed from “CDF” to “CAL. FIRE.” We use CDF here, since that isthe acronym the agency was known by during the administrative review process and throughout ths litigation. s-2418553California Supreme Court ‘November 19, 2007 Page Three range of outcomes also includes the possibility of further constraints on harvesting based on site-specific analysis.” See 21 AJA 74 [CDF120763]. The final updated SYP numbers—from which the Director selected Altemative 25— are contained in Supplemental Information on SYP No. 96-002, submitted by Pacific Lumber on February 28, 1999. See Tr. Exh. P3J, Vol. 28 at CDF119269-406. The supplemental information set forth the final Alternative 25 and 25a figures, along with comparisons to Alternatives 25b, 25c and 29a. Altemative 25 calculated a first decade sustained yield harvest level of 178.8 mmbfiyear, compared to a LTSY level of 190.0 mmbflyear. See Tr. Exh. P3J, Vol. 28 at CDF119276. As stated in the Director's determination, “{t]he harvest yolume limitation in the SYP is the maximum amount of volume that may be harvested [annually] based on ten year rolling average.” 21 AJA 74 [CDF 120763]. The 178.8 mmbfyear figure represents the sustained yield harvest level for the first decade commencing March 1, 1999. See Tr. Exh. P3J, Vol. 28 at CDF119276. As the March 1, 1999 letter states—and as provided by FPR section 1091.4.5(a)— Pacific Lumber’s harvest levels were not to exceed this figure, with the exception that the FPR contemplates a ten percent (10%) exceedance variation. FPR § 1091.13(a). The SYP, and therefore the SYP number, is effective for no more than ten years, at which point it is reviewed. Forest Practice Act (“FPA”) § 4551.3; FPR § 1091.9. Here, additional reviews could occur as a result of monitoring requirements that were required by CDF as a means of assuring long-term sustainability in light of the informational uncertainties inherent in the LTSY calculation. See Slip Op. at 17-19; see also 14 AJA 63 [DFG105716-718]; 16 AJA 65 [DFG106293-295} ‘Thus, the short answer to the Court’s question as to the significance of the selection of 178.8 mmbflyear is that it is the average annual volume of timber that can be sustainably harvested under the provisions of the SYP/HCP and FPR during the first decade. 2. Towhat extent may Timber Harvesting Plans (“THPs”) or other subsequent ‘environmental documents and future environmental decisions rely or presumptively rely on this figure? ‘The figure can be relied upon in THPs as being the average total volume that can be harvested under all THPs during any one year during the first ten years. Numerous THPs are processed in any given year with respect to the Pacific Lumber lands. No one THP contemplates a total annual harvest. On the contrary, many sites are harvested pursuant to different THPs in various locations during the course of the year and it is their cumulative volume that cannot exceed the SYP number. The extent of the reliance upon this number can be impacted by those matters discussed infra in response to the Court’s third question. s-2418553,