FOREST WATCH v. DEPT. OF FORESTRY

BARBADORO, District Judge.

John Young was civilly committed to the Massachusetts Treatment Center pursuant to Chapter 123A of the Massachusetts General Laws after a state court jury found that he was a "sexually dangerous person." The jury's verdict was affirmed on appeal in state court and Young's habeas corpus petition was rejected by the district court. He argues in this appeal that the jury's verdict violates his Fourteenth Amendment right to substantive due process because it authorizes his commitment without proof that he suffers from a sufficiently serious mental impairment.

Shortly before Young completed a state prison sentence for a 1997 indecent assault and battery, the Commonwealth filed a petition to commit him as a sexually dangerous person pursuant to Chapter 123A of the Massachusetts General Laws.

Massachusetts law allows for the civil commitment of a person convicted of a sexual offense if the person "suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility." Mass. Gen. Laws ch. 123A, § 1. The statute explains that a "mental abnormality" is a "congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." Id. A "personality disorder" is defined as "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses." Id.

Chapter 123A provides that the court must first conduct a hearing to determine whether there is probable cause to believe that an individual is a sexually dangerous person. Id. ch. 123A, § 12. If probable cause exists, the individual is committed to a treatment center "for the purpose of examination and diagnosis under the supervision of two qualified examiners," who file written reports with the court that include diagnoses and opinions as to whether the individual is sexually dangerous. Id. ch. 123A, § 13. The individual is tried before a jury unless he affirmatively waives that right. Id. ch. 123A, § 14.

In Young's case, the court followed the steps mandated by the statute and the proceedings culminated in a jury trial.

The parties stipulated that Young was eligible for civil commitment based upon his conviction for rape in 1981 and for indecent assault and battery in 1997, both of which qualify as sexual offenses under Chapter 123A. To meet its burden with respect to the other elements of its commitment petition, the Commonwealth called three psychologists, Drs. Robert Joss, Barbara Quiñones, and J. Leonard Peebles, each of whom opined that (1) Young suffers from antisocial personality disorder ("APD"), (2) his APD results in a general lack of power to control his sexual impulses, and (3) his APD makes him likely to engage in sexual offenses if he is not confined to a secure facility.

All three experts testified concerning Young's impulsivity, not only in order to justify their diagnoses of APD, but also to explain how they had each reached the conclusion that Young was a sexually dangerous person. The experts supported their testimony by citing numerous examples drawn from reports and other records that documented Young's difficulty in controlling his impulses.

A series of reports detailed Young's history as a child and adolescent. According to these documents, Young's mother reported that he had always lacked an inner control mechanism. Young briefly attended a Head Start program, but his behavior could not be controlled there. From approximately the age of seven until the age of eleven, Young attended an alternative school in Lowell. Because of his educational needs and his aggressive outbursts, the Department of Public Welfare then placed Young at St. Ann's Home, a residential treatment facility in Methuen, Massachusetts, where he lived for approximately three years. At St. Ann's, Young pushed and shoved female staff members, frequently attacked younger children, assaulted a staff member with a pool cue, threatened an elderly man with a knife, and was involved in a breaking and entering. When Young visited his family, he physically assaulted his mother and sister; his mother even reported that she feared for her life during one attack. Eventually, the staff at St. Ann's concluded that they, like the staff at Head Start, could not contain Young's behavior. Young was next placed in a program at the Hayden Inn in Dorchester, Massachusetts. There, he frequently ran away, but he did not display aggressive behavior, as most of the other residents were larger than he was. Because officials eventually determined that even the Hayden Inn program could not meet his needs, Young was sent to the Danvers State Hospital in Danvers, Massachusetts for a ten-day observation and ultimately enrolled in the Centerpoint Residential Adolescent Program in Tewksbury, Massachusetts. At Centerpoint, Young continued his violent behavior and was involved in numerous criminal activities, including theft and assault.

Unsurprisingly, the three experts testified that Young's difficulties as a child and adolescent were significant because they demonstrated his long-standing inability to control his impulses. Joss specifically noted that Young "had a great deal of difficulty controlling his behavior[,] even while [he was at St. Ann's Home,] a residential facility." Peebles emphasized the significance of the fact that multiple previous clinicians had concluded that Young had a severe impulse control problem.

Young fared no better while incarcerated than he had in the residential placements of his youth. Documents relied on by Joss revealed that Young received at least 240 disciplinary reports during the approximately seventeen years in which he was incarcerated in state prison between 1981 and February 2002. In one particularly vicious incident, Young got into a verbal argument with corrections officers, attempted to bite one officer's fingers, bit another officer on the forearm, causing deep puncture wounds, and told that officer, "Now you got AIDS, [be]cause I do." Joss and Quiñones observed that this institutional history reflected a significant lack of impulse control; Joss emphasized that even when he was being watched constantly, Young could not control himself.

Young's behavior at the Massachusetts Treatment Center in Bridgewater, Massachusetts, where he was housed and treated while he awaited his civil commitment trial, also supported the experts' opinion testimony. According to reports, in December 2002, Young disrupted his unit by yelling to staff members, "Why don't you pieces of shit come in here so I can fuck you all up?" On January 9, 2003, while awaiting a disciplinary hearing, Young yelled, "If you fucking people give me more time up here, just watch and see how I act," and he told officers he would "rip out and destroy this fucking place." That afternoon, he flooded his cell and told an officer, "This [has just] begun[;] I'm going to break your neck." The next day, Young again flooded his cell and, when confronted by an officer, said, "This has just begun[;] I'm going to smear shit all over the walls." Joss and Peebles emphasized that the fact that Young's disruptive behavior continued even at the Massachusetts Treatment Center, and in the presence of corrections officers, demonstrated that he had substantial difficulty in controlling his impulses.

All three experts also testified specifically about Young's difficulty in controlling his sexual impulses.

Police reports that the experts examined revealed that in 1981, at the age of nineteen, Young raped a woman he had met at a bar. After asking his victim for a ride home and directing her to a secluded area, he pushed her out of her car, tore off her blouse and bra, and demanded that she remove her pants while threatening her with a "magnum." During intercourse, the woman struggled and screamed; Young responded by hitting her and biting her breast. In 1997, while Young was on probation for armed robbery, he approached a fifteen-year-old girl on the street, grabbed her shoulder to turn her around, and asked her if she wanted to party as he touched her breasts. All three experts concluded that Young's two prior sexual offenses were evidence of his difficulty in controlling his sexual impulses. Joss explained that the fact that Young committed the 1997 offense while on probation, and committed the 1981 and 1997 crimes against people unfamiliar to him, demonstrated impulsiveness. In addition, Joss and Quiñones agreed that the public location of Young's 1997 attack underscored his lack of impulse control.

Another set of reports from the early 1990s noted that Young had made obscene phone calls to the wife of a corrections officer and a J.C. Penney store while he was incarcerated. Joss and Quiñones both testified that the phone calls demonstrated Young's difficulty in controlling his sexual impulses.

Finally, a March 2002 incident report from the Massachusetts Treatment Center stated that Young was found to be in possession of internet-generated, sexually explicit poems with a pornographic picture on the bottom of each page, a magazine cut-out depicting female frontal nudity, and a book with several pages depicting male and female nudity. Joss and Quiñones emphasized that the fact that Young had acquired sexually explicit contraband even while he was receiving sex offender treatment and awaiting his civil commitment trial demonstrated his extreme difficulty in controlling his sexual impulses.

At the conclusion of Young's civil commitment trial, the judge instructed the jury that it could only find Young to be a sexually dangerous person if the Commonwealth had proven beyond a reasonable doubt that (1) Young had been convicted of a sexual offense as defined by the relevant statute, (2) Young suffered from a mental abnormality or personality disorder, and (3) as a result of that abnormality or disorder, Young was likely to engage in sexual offenses in the future if not confined to a secure facility. The judge made clear that the Commonwealth was proceeding under the theory that Young suffered from a personality disorder, and defined "personality disorder" as "a congenital or acquired physical or mental condition . . . that results in a general lack of power to control sexual impulse[s]."

After deliberating, the jury found that Young was a sexually dangerous person.

Young unsuccessfully challenged the jury's verdict in the Massachusetts Court of Appeals. See Commonwealth v. Young, 66 Mass.App.Ct. 1103, 845 N.E.2d 1223, 2006 WL 1042916, at *2 (Mass.App.Ct. Apr. 20, 2006). He then filed a petition for a writ of habeas corpus in federal district court after he was denied leave to obtain further review in the Massachusetts Supreme Judicial Court. The district court rejected Young's petition in a thoughtful decision but later issued a certificate of appealability.

Young bases his appeal on a series of Supreme Court decisions that address the circumstances under which the due process clause permits a person to be civilly committed based in part upon a determination of future dangerousness. See Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). These decisions make clear that while a state may civilly commit a dangerous individual to protect the public in certain circumstances, it may not use civil commitment to punish past criminal conduct, Crane, 534 U.S. at 412, 122 S.Ct. 867, to deter others from engaging in criminal behavior, id., or to confine an individual whose dangerousness is not the product of "some additional factor, such as a `mental illness,'" Hendricks, 521 U.S. at 358, 117 S.Ct. 2072; Foucha, 504 U.S. at 77-79, 112 S.Ct. 1780. When a commitment decision is premised upon an individual's impaired volition, the court has also held that a mental impairment will be sufficient to distinguish ordinary recidivists from the dangerously mentally ill when the evidence demonstrates that the impairment results in "serious difficulty in controlling behavior." Crane, 534 U.S. at 413, 122 S.Ct. 867.

Relying on these decisions, Young presents two related substantive due process claims. First, he broadly argues that the jury's verdict cannot stand because it was based on a diagnosis of APD, which Young claims can never serve as a sufficiently serious mental disorder to justify a civil commitment decision. Alternatively, Young argues that the verdict is invalid even if APD cannot be categorically excluded as a predicate for civil commitment because the Commonwealth failed to prove that APD manifests itself in his case in a way that seriously impairs his ability to control his sexual impulses. We address both arguments after identifying the standard of review that we employ in adjudicating Young's claim.

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "the level of deference owed to a state court decision hinges on whether the state court ever adjudicated the relevant claim on the merits or not." Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010), cert. denied, 130 S.Ct. 3475, ___ S.Ct. ___, ___ L.Ed.2d ___ (2010). Unadjudicated claims are reviewed de novo. Id. Deference to the state court's determination is warranted, however, if the court either expressly resolved the federal claim on its merits or adjudicated it under a state law standard that "is at least as protective of the defendant's rights as its federal counterpart." Foxworth v. St. Amand, 570 F.3d 414, 426 (1st Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1710, 176 L.Ed.2d 197 (Mar. 1, 2010). Where deferential review is employed, a writ of habeas corpus may not issue unless the adjudication either (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law as determined by the Supreme Court of the United States," or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C. § 2254(d).

Although Young acknowledged in his appellate brief that the state court's rulings on both of his substantive due process claims are subject to AEDPA's deferential standard of review, he claimed for the first time at oral argument that his categorical claim should be reviewed de novo because the court addressed it only under state law. Delayed arguments such as these are ordinarily deemed to have been waived. See, e.g., Shell Co. (P.R.), Ltd. v. Los Frailes Serv. Station, Inc., 605 F.3d 10, 19 (1st Cir. 2010); United States v. Pizarro-Berrios, 448 F.3d 1, 5 (1st Cir. 2006); Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990). Young presents no persuasive argument as to why we should deviate from our established practice. Thus, we apply AEDPA's deferential standard of review to both of Young's claims.

Young first argues that a diagnosis of APD can never serve as a sufficient basis for civil commitment because the disorder does not affect volition and is so prevalent among criminal offenders that it cannot be used to distinguish ordinary recidivists from the dangerously mentally ill. The Massachusetts Court of Appeals declined to adopt this argument in the abstract way in which Young presented it and instead disposed of the case by examining the evidentiary record to determine whether sufficient evidence was produced at trial to demonstrate that Young's APD seriously impairs his ability to control his sexual impulses. Young, 2006 WL 1042916, at *2. We hold that the state court's analytical choice represents a reasonable application of Supreme Court precedent.

The Supreme Court has not decided whether a diagnosis of APD can qualify by itself as a sufficiently serious impairment to support the civil commitment of a dangerous individual. The Court's decisions in Hendricks and Crane, however, suggest that the general issue as to whether a particular mental disorder can serve as a sufficient basis for civil commitment ordinarily is not susceptible to categorical analysis. In Hendricks, the court declined to give "talismanic significance" to the terminology used by the psychiatric community when evaluating the constitutionality of a state statute that based commitment on a finding of "mental abnormality" rather than "mental illness." 521 U.S. at 359, 117 S.Ct. 2072. Instead, recognizing that civil commitment ultimately turns on law rather than psychiatry, the court gave state legislatures significant latitude in specifying the circumstances under which civil commitment will be warranted. Id. More recently, in Crane, the Court endorsed a contextual approach to the determination of whether an impairment results in serious difficulty in controlling behavior by stating that the determination should be made "in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself. . . ." 534 U.S. at 413, 122 S.Ct. 867. When read together, these decisions suggest that a diagnostic label such as APD, while relevant, will rarely be dispositive in determining whether an impairment is sufficiently substantial to seriously impair volition. Instead, it is the manner in which the condition "manifests itself in the individual" that will determine whether a particular commitment decision meets the requirements of the due process clause. Brown v. Watters, 599 F.3d 602, 614 (7th Cir. 2010). Because the state court followed this approach, it did not unreasonably apply Supreme Court precedent when it refused to credit Young's categorical claim.

Young alternatively challenges the jury's verdict by claiming that the record does not establish that APD causes him serious difficulty in controlling his sexual impulses. He supports this argument by (1) noting that he was not found to have a paraphilia such as exhibitionism or pedophilia in addition to APD and (2) citing excerpts from the cross-examinations of the three experts who testified for the Commonwealth, which arguably could be read to suggest that Young retains the capacity to control his sexual impulses in certain circumstances. We hold that the Massachusetts Court of Appeals did not unreasonably apply Supreme Court precedent in rejecting this argument.

Like all questions of evidentiary sufficiency, this one must be analyzed on the basis of the record. Although Young claims that APD cannot affect volition when it is unaccompanied by paraphilia, he fails to identify any evidence in the record to support this assertion. Instead, he cites United States v. Wilkinson, 646 F.Supp.2d 194, 205 (D.Mass. 2009), which recognizes that the psychiatric community is divided on the subject. See also Brown, 599 F.3d at 613 n. 13 (describing the debate concerning whether APD is an appropriate predicate for civil commitment). Even if it were appropriate to consider judicial decisions recognizing the current controversy in examining the state court's sufficiency determination — an issue we need not decide — these cases at most suggest that experts disagree, and such reasonable disagreements simply are not dispositive. Id. at 613-14. What matters here is that all three of the experts who testified in this case were in agreement that Young's APD causes him serious difficulty in controlling his sexual impulses.

Young's effort to cast doubt on the experts' opinions by pointing to selected excerpts drawn from their cross-examinations is also unpersuasive. As the record demonstrates, Young's impulse control problems date back to childhood and have continued throughout his incarceration. His two sexual offense convictions, as well as the evidence that he placed obscene phone calls from prison and possessed sexually explicit contraband while he was awaiting trial in the current matter, also provide substantial support for the experts' opinions that Young continues to experience substantial difficulty in controlling his sexual impulses. Although the record could be read to suggest that Young is able to control those impulses in certain circumstances, the Supreme Court has held that a total lack of volitional control is not required to justify the commitment of a dangerous sex offender. Crane, 534 U.S. at 411, 413, 122 S.Ct. 867. Accordingly, the state court did not unreasonably apply Supreme Court precedent when it determined that Young suffered from a sufficiently serious mental impairment to warrant his civil commitment.

The district court's decision denying Young's petition for habeas corpus is affirmed.

DAWSON, J., Dissenting.

I disagree with the majority's conclusion that Ebbetts Pass Forest Watch and Central Sierra Environmental Resource Center (plaintiffs) were not "qualitatively" successful parties in this litigation. I believe they were partially successful, which is enough. I also believe their success involves issues of significant concern both to the general public and to those who seek to enforce the goals of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and its incarnation applicable to forest lands, the Z'berg-Nejedly Forest Practice Act of 1973 (Pub. Resources Code, § 4511 et seq.). For those reasons, as more fully explained below, and to encourage a vigilance toward protection both of the environment and informed self-government, I believe plaintiffs are entitled to recover some of their attorney fees.

I. Background

Plaintiffs won three legal issues decided by the California Supreme Court in Ebbetts Pass Forest Watch v. California Dept. of Forestry Fire Protection (2008) 43 Cal.4th 936 [ 77 Cal.Rptr.3d 239, 183 P.3d 1210] ( Ebbetts Pass II), but obtained no actual relief. The reason plaintiffs obtained no relief was that both Sierra Pacific Industries (Sierra Pacific) and California's Department of Forestry and Fire Protection (CDF) presented an adequate alternate analysis to their discussion that contained legal errors.

The timber harvest plans submitted by Sierra Pacific dealt with potential herbicide use in two ways. First, Sierra Pacific asserted herbicide use was not part of the project and, therefore, there was no requirement that such use be disclosed in the timber harvest plans. Second, as an alternative to its no-project approach, Sierra Pacific discussed the potential impacts of herbicide use as though that use were part of the project covered by the plans.

Plaintiffs convinced the California Supreme Court that Sierra Pacific's no-project approach to herbicide use was wrong, but failed to convince the court that the alternate discussion of the impacts of herbicide use was inadequate.

Similarly, CDF's response to public comments presented alternate analyses of herbicide use. Initially, CDF asserted it had no authority to address potential herbicide use and that compliance with the restrictions established by the Department of Pesticide Regulation would, as a matter of law, dictate a finding of no significant environmental impact. Alternatively, CDF provided an assessment of potential environmental impacts of herbicide use. ( Ebbetts Pass II, supra, 43 Cal.4th at p. 957.)

Plaintiffs convinced the Supreme Court that CDF's first alternative was erroneous, but failed to demonstrate CDF's second alternative was wrong. As a result, the Supreme Court upheld CDF's approval of the timber harvest plans.

The question presented in this appeal is whether plaintiffs' victories on three legal issues decided by the Supreme Court satisfied the requirements of Code of Civil Procedure section 1021.5. Specifically, were plaintiffs successful parties in an action that resulted in the enforcement of an important right affecting the public interest and that conferred a significant benefit on the general public or a large class of persons?

The trial court answered this question in the negative, concluding that the lawsuit did not vindicate an important right affecting the public interest or achieve any of the benefits sought by plaintiffs in pursuing the mandamus petition. The court's conclusion was based on certain determinations it labeled "Findings."

II. Trial Court's Erroneous Findings

I will begin by discussing the trial court's findings I believe are wrong.

A. Ebbetts Pass II Is New Case Law

I believe the trial court erred in finding that the Supreme Court's decision in Ebbetts Pass II did not establish new case law. Though labeled a "finding," this determination depends upon an interpretation of the Supreme Court's opinion and existing case law, which is a question that can be decided as a matter of law and thus is subject to independent review on appeal.

1. CDF's authority

The Supreme Court's opinion set forth the legal principle that "as the lead agency evaluating timber harvests, CDF has not only the authority but also the duty to approve, disapprove, and impose mitigation measures on timber harvest plans, including measures to address the foreseeable use of herbicides in planned silvicultural operations." ( Ebbetts Pass II, supra, 43 Cal.4th at p. 957.) The Supreme Court cited no case that adopted this legal principle. Similarly, neither the trial court, CDF, nor Sierra Pacific cited any case that sets forth this principle regarding CDF's authority.

Therefore, Ebbetts Pass II did establish new case law because it (a) resolved an issue disputed by the parties and (b) adopted a legal principle regarding CDF's authority that had not been stated in any other published case.

2. Compliance with label restrictions

The Supreme Court's opinion also included the following conclusion of law: "Nor was CDF correct in concluding that any use of an herbicide in compliance with Department of Pesticide Regulation label restrictions necessarily `would not have a significant effect on the environment.' (See Californians for Alternatives to Toxics v. Department of Food Agriculture[(2005)] 136 Cal.App.4th [1,] 17 [ 38 Cal.Rptr.3d 638] [`Nor is there legal authority for the proposition that using registered pesticides according to their labels never results in significant adverse effects.']; cf. Oregon Environmental Council v. Kunzman (9th Cir. 1983) 714 F.2d 901, 905 [`"the mere fact that a program involves use of substances registered under FIFRA [federal pesticide law] does not exempt the program from the requirements of NEPA [federal environmental law]"'].)" ( Ebbetts Pass II, supra, 43 Cal.4th at p. 957.)

An indication that the Supreme Court's opinion established a principle not set forth in other cases is its use of the introductory signal "see" in the citation that supports its conclusion. The California Style Manual states that "[c]itations to weaker support, however, should be introduced by the word `see.' Thus, `see' should precede citations to cases that only indirectly support the text, citations to supporting dicta, and citations to a concurring or dissenting opinion." (Cal. Style Manual (4th ed. 2000) § 1:4, pp. 9-10.) I am aware of no basis for concluding that the court was mistaken in its use of the introductory signal.

Furthermore, no previously published case had rejected the proposition that the Department of Pesticide Regulation's registration of herbicides excused CDF from assessing those herbicides' use as part of a particular timber harvest plan (see Ebbetts Pass II, supra, 43 Cal.4th at p. 956) or in any other context.

Californians for Alternatives to Toxics v. Department of Food Agriculture, supra, 136 Cal.App.4th 1 can be read as adopting the general principle that the existence of the Department of Pesticide Regulation's registration program does not remove the environmental impacts of pesticide use from the proper scope of an environmental impact report or an environmental impact report equivalent. But even if the case is read as establishing this general principle, (a) the principle had never been applied to CDF or to timber harvest plans and (b) CDF did not concede its application in this case. Instead, the brief the Attorney General's Office filed in the Supreme Court in Ebbetts Pass II, supra, 43 Cal.4th 936 on October 13, 2006, argued that "CDF's statement, that use of registered pesticides in accordance with federal and state law would not or should not have a significant effect, is reasonable and supported by a fair reading of the Department of Pesticide Regulations program."

Consequently, Ebbetts Pass II is new in the sense that it (1) resolved an issue disputed by the parties and (2) extended the principle contained in Californians for Alternatives to Toxics v. Department of Food Agriculture to CDF and its review of timber harvest plans, which is a significantly different factual situation. (See Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103 [ 240 Cal.Rptr. 569, 742 P.2d 1290] [petitioners entitled to attorney fees under Code Civ. Proc., § 1021.5 where Supreme Court's decision applied existing precedent to a distinct factual situation].)

3. Scope of the project

Sierra Pacific's timber harvest plans stated that the use of herbicides after the proposed harvest to suppress competing vegetation (1) was not a project under CEQA and (2) was not part of the timber harvest plan project because the critical details of use were not yet known. In support of this assertion, the timber harvest plans asserted "there is no requirement in the [California Code of Regulations, title 14, section 895.1] definition of `reasonably foreseeable future projects' that indicates that herbicide application is a `project' as defined. Since the disclosure of activities in [California Code of Regulations, title 14, section 912.9] is tied to projects, disclosure of herbicide application activities is not required." In addition, the timber harvest plans stated: "Some would contend that a [timber harvest plan] should contain an analysis of the impacts of potential herbicide spraying in the future. [Sierra Pacific] feels that the use of herbicides is entirely too speculative to be considered as part of a [timber harvest plan] project."

The Supreme Court concluded that the timber harvest plans incorrectly stated that herbicide use was too speculative for present analysis. ( Ebbetts Pass II, supra, 43 Cal.4th at p. 955.) This conclusion and the court's subsequent analysis necessarily imply the plans were wrong in stating that potential herbicide use was not part of the project. In reaching this conclusion regarding the scope of the project, the Supreme Court resolved an issue of law. ( Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382 [ 60 Cal.Rptr.3d 247, 160 P.3d 116] [whether an activity is a project is a question of law].)

The Supreme Court's resolution of this question of law is the first published decision to conclude that future herbicide use is part of the project covered by a timber harvest plan. The question was not resolved in the analysis of herbicide use set forth in Ebbetts Pass Forest Watch v. Department of Forestry Fire Protection (2004) 123 Cal.App.4th 1331, 1361-1364 [ 20 Cal.Rptr.3d 808] ( Ebbetts Pass I). Instead, that court appears to have concluded that any error did not exist or that it was unimportant (i.e., not prejudicial) because the timber harvest plans and CDF's comments provided an extensive discussion of herbicide use and its potential impacts. Besides Ebbetts Pass I and Ebbetts Pass II, no other published decision mentions the question whether the potential use of herbicide in connection with a timber harvest plan is part of the project that must be addressed in the plan. Therefore, Ebbetts Pass II's ruling on this legal issue is unique. Although the ruling can be viewed as the result of applying existing rules of law that define speculativeness and its opposite, foreseeability, to herbicide use, the conclusion in Ebbetts Pass II is new in the sense that it applies those definitions to a set of facts significantly different from those addressed in other published opinions.

4. Summary

I believe the Supreme Court's decision created new law because it (1) set forth two new legal principles regarding CDF's authority and its duty to review potential herbicide use and (2) reached a conclusion of law regarding the scope of the project covered by a timber harvest plan that had not been set forth in any other published decision.

B. Changes Resulting from the Litigation

I also believe the trial court erred in finding that "CDF's behavior will not change prospectively as a result of the litigation." This ex ante finding of fact was of sufficient concern that prior to oral argument this court sent counsel a letter stating they should be prepared to address the following issues:

"(1) Do CDF's official responses to public comments to timber harvest plans continue to assert `"we do not have the authority to approve or disapprove any project regarding the use of chemicals"'? ( [Ebbetts Pass II, supra,] 43 Cal.4th 936, 957. . . .)

"(2) Do CDF's official responses to public comments to timber harvest plans continue to include CDF's conclusion `that any use of an herbicide in compliance with Department of Pesticide Regulation label restrictions necessarily "would not have a significant effect on the environment"'? ( Ebbetts Pass II, supra, 43 Cal.4th at p. 957.)

"(3) Do Sierra Pacific's timber harvest plans continue to `incorrectly characterize[] herbicide use as "too speculative" for present analysis'? ( Ebbetts Pass II, supra, 43 Cal.4th at p. 955.)"

At oral argument, the deputy attorney general arguing on behalf of CDF conceded that CDF's official responses to public comments no longer contain the erroneous statements explicitly identified by our Supreme Court. Also, counsel for Sierra Pacific did not assert that its timber harvest plans continue to characterize herbicide use as too speculative for present analysis. Furthermore, after reviewing the arguments that CDF presented to the California Supreme Court in its brief in Ebbetts Pass II, I am unconvinced by CDF's claim that the present litigation did not lead to the change in its responses to comments.

Rather, I believe it was due to plaintiffs' vigilance both during the administrative proceedings that led to this litigation and throughout the litigation itself that Sierra Pacific was not and will not be able to avoid consideration of the impact of herbicide use either in this or future timber harvest plans and CDF was not and will not be able to abdicate its responsibilities in connection with such.

III. Pragmatic Assessment of Gains Achieved, Importance and Significance

A. Gains Achieved

Plaintiffs' victories on the three legal issues did not result in any relief involving the three timber harvest plans that were the subject of this lawsuit. Consequently, from a pragmatic point of view, the gains achieved by plaintiffs will be the impact that resolution of the three legal issues has on future timber harvest plans.

One type of impact concerns the contents of the environmental review documents. Timber harvest plans will no longer contain the erroneous view that herbicide use is not part of the project. Similarly, CDF's responses to public comments will no longer misinform the public that (1) herbicides used in accordance with label restriction will not, as a matter of law, cause a significant environmental impact and (2) CDF lacks the authority to evaluate herbicide use and approve, disapprove, or impose mitigation measures on that use.

Another impact of the opinion in Ebbetts Pass II is that it narrows the options available to Sierra Pacific and CDF for addressing herbicide use in future timber harvest plans and responses to public comments. Without the decision in Ebbetts Pass II, Sierra Pacific or CDF could have chosen to rely exclusively on their erroneous approach to herbicide use and eliminated any alternative approach that assessed the environmental impact of the herbicide use.

I believe these gains establish the requisite success. I would not adopt a new legal standard that limits success under Code of Civil Procedure section 1021.5 to cases where a plaintiff has proven facts that justify relief, particularly because (1) such a standard is difficult to square with the decision in Harbor v. Deukmejian, supra, 43 Cal.3d 1078 to award fees even though the facts of that case did not justify any relief and (2) it diverts the analysis from other types of gains that can be achieved by private litigants and from the importance and significance of those gains.

B. Importance

The importance of the changes or gains achieved is assessed in terms of the relationship of the changes to the achievement of fundamental legislative goals. ( Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935 [ 154 Cal.Rptr. 503, 593 P.2d 200].)

The dual goals of California environmental legislation are protection of (1) the environment and (2) informed self-government. ( Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 [ 26 Cal.Rptr.2d 231, 864 P.2d 502].) The latter goal is reflected in the provisions of Public Resources Code section 21003, subdivision (b), which state that it is the policy of California that environmental review documents be "written in a manner that will be meaningful and useful to decisionmakers and to the public." Environmental review documents are meaningful and useful to the public insofar as informed self-government is concerned when they promote accountability. "If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees." ( Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 [ 253 Cal.Rptr. 426, 764 P.2d 278].)

As a result of Ebbetts Pass II, CDF will no longer be confused regarding the scope of its duties and can no longer deflect accountability for its conclusions by providing the public with the erroneous alternate explanation that (1) it has no authority to analyze herbicide use and (2) following label restrictions necessarily will adequately protect the environment. Also, timber harvest plans will be foreclosed from misinforming the public about the scope of the project covered. The elimination of this misinformation from the timber harvest plan review process is important because of its relationship to the fundamental legislative goal of protecting informed self-government.

Another indication of the importance of the three issues is that the California Supreme Court decided to address them in its decision. Had the court thought the issues were unimportant or insignificant, it could have taken the analytical path used by the Third Appellate District in Ebbetts Pass I, supra, 123 Cal.App.4th at pages 1361-1364 and avoided discussing the issues. Instead, the Supreme Court made the effort to take a longer analytical route. Presumably, it made this effort for a reason, and I believe the reason was that the court (1) considered it important to correct CDF's erroneous view of (a) its authority and (b) the effect of the Department of Pesticide Regulation's restrictions and (2) wished to foreclose future assertions by CDF of the positions advocated in its Supreme Court briefs.

C. Significance

The legal principles on which plaintiffs prevailed before the Supreme Court will confer a significant benefit on the general public. CDF is a state agency that was mistaken on a fundamental question — its own authority. Furthermore, the authority in question — the regulation of herbicide use on forest land — has broad application in California, particularly with CDF's approval of plantation silviculture. The Cedar Flat timber harvest plan states that California's commercial timberland covers approximately 19 million acres. Thus, resolution of the question concerning CDF's authority is more significant than the resolution of a question concerning a local government's approval of a single development that will not be repeated in the future.

In addition, I believe the clarification of governmental authority is more significant to the public where an agency is vigorously denying the authority with which it has been entrusted.

Thus, the Supreme Court's rejection of (1) Sierra Pacific's attempt to exempt from the timber harvest plan process its use of herbicides in plantation forestry, (2) CDF's position that it lacked authority to regulate herbicide applications in connection with plantation forestry, and (3) CDF's position that such use of herbicides would have no significant environmental impact as a matter of law, so long as application of the herbicides complied with broad restrictions imposed by the Department of Pesticide Regulation but not targeted at forestry, will stand as a lasting and significant benefit to the general public.

IV. Benefit Sought

Finally, I disagree with the majority's determination that plaintiffs failed to achieve some of the benefit they sought in bringing suit. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292 [ 240 Cal.Rptr. 872, 743 P.2d 932].)

Plaintiffs' verified petition alleged that CDF abused its discretion by failing to assess the potential significant impacts of herbicide use associated with Sierra Pacific's three timber harvest plans. Plaintiffs could not have prevailed on this claim unless they prevailed on the foundational issues that (1) herbicide use was part of the project covered by the timber harvest plans, (2) CDF had the authority to evaluate the environmental impacts from the potential herbicide use and (3) the environmental impacts from the herbicide use could be significant even if the herbicides were applied in accordance with the restrictions imposed by the Department of Pesticide Regulation. In other words, the allegations and prayer for relief in plaintiffs' petition necessarily encompassed the specific legal issues that were decided by the California Supreme Court in favor of plaintiffs. (Cf. Gross v. FBL Financial Services, Inc. (2009) 557 U.S. ___, ___, fn. 1 [ 174 L.Ed.2d 119, 129 S.Ct. 2343, 2348, fn. 1] [threshold issues are fairly included in the questions raised in the parties briefing].)

Also, plaintiffs' opening appellate brief in the appeal on the merits filed September 10, 2003, included the following heading: " CDF Has the Legal Authority to Evaluate Herbicide Impacts on THPs." ( Ebbetts Pass Forest Watch v. California Dept. of Forestry Fire Protection (Oct. 28, 2008, F042896) [nonpub. opn.].) Under that heading, plaintiffs attacked Sierra Pacific's "project" based arguments as well as CDF's position regarding its authority.

Thus, based on my comparison of plaintiffs' pleadings and briefing to the issues on which they prevailed, I believe plaintiffs made it part of the way to achieving their primary goal regarding herbicide use and in so doing achieved part of the benefit they sought in bringing this lawsuit.

In Harbor v. Deukmejian, supra, 43 Cal.3d 1078, the California Supreme Court stated the petitioners were "the `successful' party in that the impact of our decision is to vindicate the principle upon which they brought this action . . . ." ( Id. at p. 1103.) Here, plaintiffs achieved a similar success because (1) the California Supreme Court's decision vindicated some of the principles upon which they brought this action and (2) these principles would not have been vindicated outside of a private enforcement action, because both CDF and its counsel, the Attorney General's Office, vigorously opposed the principles advocated by plaintiffs and adopted by the Supreme Court. Thus, like the petitioners in Harbor, it is not anomalous for plaintiffs to recover some of their attorney fees under the private attorney general fee doctrine despite their failure to obtain actual relief in this lawsuit.

Lastly, I am unable to discern how the public policies underlying Code of Civil Procedure section 1021.5 would be served by denying fees to plaintiffs who pursue environmental litigation on the ground that they did not plead separately every foundational issue that underlies their broader claim. I am concerned that the majority's decision will have the unintended consequence of incentivizing plaintiffs in environmental litigation to specifically plead every foundational issue underlying their claims and perhaps include a request for declaratory relief on each of those issues. In my view, environmental litigation under California's statutes is complex enough without applying the benefit-sought aspect of the private attorney general doctrine in a manner that incentivizes plaintiffs to increase the complexity of that litigation.

V. Conclusion

Where a state agency vigorously denies it is responsible for assessing the environmental impact of a particular activity, such as herbicide use, that will repeatedly come before it in connection with the proposals the agency must approve or disapprove, and is supported in this denial by the Attorney General's Office, I believe a plaintiff that obtains a Supreme Court decision clarifying the agency's authority is entitled to recover some of its attorney fees under the private attorney general doctrine set forth in Code of Civil Procedure section 1021.5.

For all these reasons, I would remand this matter to the trial court for application of the lodestar adjustment method for determining the appropriate amount of attorney fees that should be awarded to the plaintiffs. ( EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 787-788 [ 75 Cal.Rptr.3d 902].)

Appellants' petition for review by the Supreme Court was denied November 11, 2010, S186500. Baxter, J., did not participate therein.