The opinion
PETERSON, P. J., Concurring and Dissenting.
I concur with the majority on several important issues. I agree that a court reviewing a decision by the California Department of Forestry and Fire Protection (the Department) to approve a timber harvest plan (THP) must do so by administrative mandamus (Code Civ. Proc., § 1094.5), and that the trial court here erred both because it treated the matter as one under traditional mandamus (Code Civ. Proc., § 1085), and because it considered evidence outside the administrative record. I also agree that a timber harvester who has submitted a modified THP pursuant to California Code of Regulations, title 14, 1 section 1051 must complete the appropriate portion of Technical Rule Addendum No. 2 (Regs., § 912.9) (Rule 2) whenever there is substantial evidence in the record to support a fair argument that significant individual or cumulative impacts will
*1406 result from the proposed timber operations. However, I respectfully dissent from the majority’s application of that test. There was absolutely no credible evidence in the administrative record to support the conclusion that this timber harvest would cause any significant individual or cumulative impact. Thus, no analysis of those impacts was necessary. The modified THP here did address project alternatives adequately and cannot be deemed defective on that ground. I further dissent from the majority’s contrary conclusion.
I begin my analysis by recognizing an important but frequently overlooked point: Timber harvesting is not just tolerated in California; it is encouraged. (See Pub. Resources Code, 2 § 4512, subd. (c) [“[I]t is the policy of this state to encourage prudent and responsible forest resource management calculated to serve the public’s need for timber and other forest products . . . .”].) This policy extends, in particular, to small nonindustrial timber owners, like appellant Bruce L. Van Alstyne (Van Alstyne), who want to conduct a limited harvest. (§ 4593, subd. (a).) Furthermore, the Legislature has specifically recognized that limited harvests cause “minimal environmental harm . . . because low volume production and dispersion around the state of these small tracts reduces damage to aesthetics, air quality, watersheds, and wildlife.” (Id., subd. (b).)
The Department sought to implement this policy of encouraging small nonindustrial harvests by adopting the modified THP procedures set forth in Regulations section 1051 et seq. The heart of those procedures is found in Regulations section 1051 which sets forth a long list of stringent environmental restrictions and mitigations that must be adopted in order to qualify a modified THP. 3 Operations that comply with all of those requirements “are presumed to be unlikely to cause a significant adverse impact to the environment . . . .” (Regs., § 1051.1, 6th par.) However, this presumption can be rebutted if “the Director [i.e., the Department] determines in consultation with trustee or responsible agencies, or upon review of public comments that *1407 a fair argument exists that significant individual or cumulative impacts will result from timber operations. Where issues (a fair argument) are raised the RPF shall complete the appropriate portion of [Rule 2] and submit that information for the Director’s review.” (Id. at 7th para.)
With this background, I turn to the specific issues raised. The majority holds, and I agree, that a timber harvester must complete the appropriate portion of Rule 2 (i.e., an abbreviated cumulative impact analysis) whenever there is substantial evidence in the administrative record to support a “fair argument” that significant individual or cumulative impacts will result from the proposed timber operations. The majority holds that the Department was required to make a Rule 2 analysis of the THP’s cumulative impact, because *1408 allegedly substantial evidence in the record supported the conclusion that the proposed timber harvest could reduce the amount of fog drip produced by trees to be harvested and thereby adversely affect the water supply of the area. This latter conclusion is wholly belied by the record before us.
In this context, substantial evidence is defined to mean “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made is to be determined by examining the entire record. Mere uncorroborated opinion or rumor does not constitute substantial evidence.” (Regs., § 15384, subd. (a).)
Here, although the majority ignores the fact, the Department conducted an exhaustive multidisciplinary preharvest inspection and prepared a report to summarize its findings. That report specifically concluded the proposed harvest would not reduce water supplies in the area. “The amount of trees being removed will not have any noticeable effect [on] either the water table or the surface water in the area.” This conclusion was supported by a senior engineering geologist who participated in the preharvest inspection and who submitted a report stating, “Some concern was expressed by neighboring landowners regarding the potential for the proposed timber harvesting to adversely affect wells and ground water quantity. Removing timber is a common practice used to enhance summer base flows of wells and springs. Soil water that would have been used by the trees infiltrates to the ground water table where a substantial percentage of the vegetation has been removed. However because the proposed harvest is very light, it is unlikely that there will be a significant affect on ground water supplies.” This conclusion was further supported by the Department’s official response to public comments made during the review process. The Department explained that the impact of selective harvesting upon available water supply had been the subject of several scientific studies and that based on those studies, “little net change in water availability is expected to occur. . . . [T]he THP proposes to remove between 20 and 30% of the total canopy within the 35 acre stand. At most, fog drip may be reduced by a proportion roughly equivalent to the decrease in conifer canopy. This temporary canopy reduction will coincide with a reduction in evapotranspirational water loss. The vast majority of forest research documents increases in available ground water following the removal of timber .... These increases are expected to be both minor and short-lived, due to regrowth of the forest canopy. Significant impacts upon water availability are not expected to occur.” Thus, the record here includes ample evidence to support the conclusion that the proposed selective harvest would not adversely affect the water supply.
*1409 What evidence is there to support a different conclusion? The majority first relies on a paper prepared in 1987 by a student at Humboldt State University, Steven A. Harris, entitled Relationship of Convection Fog to Characteristics of the Vegetation of Redwood National Park. The paper itself does not present any independent research, but is a compilation of other articles that discuss fog drip in areas as far away as Australia and Japan. The paper is not specific to the site at issue; and while it discusses the phenomena of fog drip generally, it says absolutely nothing about the precise issue at hand: whether the proposed selective harvest might reduce the local water supply. The Harris paper is far too general and nonspecific to support any reliable conclusions. “[Speculative possibilities are not substantial evidence of environmental impact.” (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756 [ 272 Cal.Rptr. 83 ].)
Next, the majority relies on comments made by Daniel E. Wickham at a review team hearing that the proposed harvest might affect the water supply. Multiple problems exist with the conclusions of Wickham. First, he told the members of the review team that he had a Ph.D. in ecology. In fact, he later submitted a declaration (under penalty of perjury) stating that his Ph.D. was in zoology, not ecology, and that he specialized in marine ecosystems. As a general rule, testimony by a witness who is not competent to render an opinion is not deemed substantial evidence. (See, e.g., Cathay Mortuary, Inc. v. San Francisco Planning Com. (1989) 207 Cal.App.3d 275, 281 [ 254 Cal.Rptr. 778 ] (Cathay Mortuary).) I fail to understand, and the record does not disclose, how a zoologist who specializes in marine life is qualified to provide an opinion about the effect of fog drip on the water supply of real property. Wickham simply based his conclusions (such as they were) entirely on the Harris paper. Since the basis for Wickham’s opinion was obviously flawed, his opinion was as well. An agency may, and the Department obviously did, disregard Wickham’s purported “expert” testimony because, inter alia, it lacked adequate foundation. (See Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 156-157 [284 Cal-Rptr. 427] (Lucas Valley).) 4
The majority strives mightily to bolster Wickham’s credentials by noting he worked as a staff ecologist at a marine laboratory for a number of years, *1410 and he worked on wastewater treatment issues in Sonoma County. While these experiences may have qualified Wickham to express an opinion on sewage disposal or pollution in marine ecosystems, I see nothing that suggests he had any experience in forestry or that he was qualified to express an opinion on fog drip. Contrary to the majority’s statement, I do not believe that to raise a fair argument, “members of the public must bring forth impeccably credentialed experts who offer scientifically irrefutable, site-specific information foretelling certain environmental harm . . . .” (Maj. opn., ante, at p. 1402.) I do, however, believe that persons who purport to make predictions about possible adverse environmental effects must be qualified to express those opinions. Common sense and case law require no less. (See Cathay Mortuary, supra, 207 Cal.App.3d at p. 281 .) Indeed, by ruling the Department was required to credit Wickham’s unsubstantiated conclusions, the majority simply ignores a long line of authority holding an agency may reject the conclusions of an expert that are outside his area of expertise, that lack an adequate foundation, or that do not relate directly to the specific issue under review. (See Lucas Valley, supra, 233 Cal.App.3d at pp. 156-157 [A real estate agent was not qualified to render an opinion on a project’s effect on property values.]; Gentry, supra, 36 Cal.App.4th at pp. 1421-1422 [A letter from an engineering professor about groundwater and erosion impacts was not substantial evidence because it was based on an inadequate factual foundation.]; Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 734-735 [ 3 Cal.Rptr.2d 488 ] [A letter from a geologist regarding possible soil instability was not substantial evidence of potential adverse impact because it did not conflict with specific evidence showing the project had been engineered correctly.].)
In sum, it is important to note that junk science does not emanate, solely, from the attempted testimony of purported experts on subjects within a fact finder’s ken. (Evid. Code, § 801, subd. (a).) It is not infrequently offered in trial courts and administrative hearings, as it was here, by purported experts who lack the requisite expertise in the matters on which they 5 The courts should discourage both practices.
*1411 On appeal, we review acceptance or rejection of expert testimony by courts and administrative agencies by the same standard—abuse of discretion. In such review of the administrative record here, we must decide if substantial evidence exists to anchor Wickham’s testimony in a body of objective learning qualifying him to opine on the effects of fog drip on Van Alstyne’s property. None does.
When that conclusion is reached, we owe the same deference to fact-finding administrative agencies we extend to trial courts, i.e., we must affirm the administrative body’s decision clearly disregarding that unqualified opinion. We must do so even though such opinion was presented to the agency in an administrative hearing open to the public, where the fact-determining agency lacks a safeguard judicial proceedings provide: a judge acting as gatekeeper to exclude such opinion evidence from a jury’s consideration.
Next, the majority relies on language from a study the Department itself submitted to support its conclusion that the selective harvest proposed here would not adversely affect the water supply. The study in question (Keppeler & Ziemer, Logging Effects on Streamflow: Water Yield and Summer Low Flows at Caspar Creek in Northwestern California (July 1990) 25 Water Resources Research 1669, 1678) concludes that selective logging results in an increase in the available water supply, but that the increase is only temporary. The majority seizes on an isolated passage in the Keppeler study which notes that during one particular timber harvest, “An important contradiction in the pattern of increased flows after logging was observed . . . in that one instance, a “small decrease in annual water yield was noted.” (P. 1670.) However, the majority fails to acknowledge that the timber harvest which resulted in a “small decrease in annual water yield” was a clear cut. {Ibid.) The fact that a clear cut can result in a “small decrease in annual water yield” does not support the conclusion that a “very light” selective harvest such as that proposed here might adversely affect the water supply.
Finally, the majority relies on letters submitted by Dan E. Steimle, a property owner, and Ernest L. Carpenter, a member of the Sonoma County Board of Supervisors, both of whom expressed concern about the water supply. However, Steimle based his comments solely on a report (prepared in 1982) that allegedly showed some correlation between the land containing the grove to be selectively and partially harvested and producing water wells in the area. That report says nothing about fog drip, nothing about selective harvests, and nothing about whether the removal of a limited number of trees might adversely affect the water supply. Speculation and unfounded conclusions are not substantial evidence. (Leonoffv. Monterey County Bd. of *1412 Supervisors (1990) 222 Cal.App.3d 1337, 1352 [ 272 Cal.Rptr. 372 ].) Carpenter’s letter is even less substantial. He simply states that various constituents have expressed their concern about the water supply. Nothing in that letter supports the conclusion that adverse effects will actually occur.
In sum, the administrative record in this case includes site specific, scientifically based evidence that shows this modified THP would not adversely affect the water supply, and absolutely no substantial evidence it would. Under these circumstances, I would hold that no “fair argument” was made supporting a Rule 2 analysis of the individual or cumulative impacts allegedly produced by this modified THP; and the Department properly found such analysis was not required.
I also disagree with the majority’s conclusion that the modified THP here was inadequate because it did not address project alternatives. 6 In fact, the modified THP form used here required Van Alstyne to consider and select among various alternatives and to explain his choices. For example, section 15 of the form application for the modified THP requires the harvester to choose the harvesting method to be used from a list that includes various options such as shelterwood, seed tree, commercial thinning, and salvage. Van Alstyne chose the “Selection” alternative and further specified “Individual tree selection [pursuant to Regulations section] 913.2(a)” which is a reference to a regulation under which trees are removed individually or in small groups. Section 19 of the form requires the harvester to select the type of yarding systems to be used from various options including balloon, helicopter, animal, or cable. Van Alstyne selected “Tractor, skidder, forwarder.” Having selected that alternative, sections 22 through 25 of the form required Van Alstyne to consider the environmental consequences of his choice and to explain and justify any adverse affects. Sections 30 through 37 of the form required Van Alstyne to consider the types of roads and landings that would be needed to conduct the harvest and whether they would cause any adverse affects. If Van Alstyne had answered affirmatively to any of these questions regarding adverse affects attendant to his choice selections, he would have been required to explain and justify his choice and to “give site-specific measures to reduce adverse impacts . . . .”
While the discussion of alternatives here was not as detailed as might be found in a conventional EIR, it was more than adequate to address the actual environmental issues involved in this modified THP permit. Most importantly, it was entirely consistent with the modified THP procedure, the entire
*1413 goal of which is to reduce the “regulatory burden” on the plan submitter. (Regs., § 1051.3.)
The majority suggests the analysis of alternatives was inadequate because it was not segregated into a separate section of the modified THP with an appropriate heading. The majority has not cited any authority stating this is required, and I am aware of none. In fact, a leading commentator states, “There are several methods for setting forth [the analysis of alternatives] in an EIR, and the courts have not favored any particular method. Most often, the alternatives analysis is set forth in a separate section that contains a brief, category-by-category analysis of the various impacts of each alternative. ... An alternatives analysis may also be set forth in each topical section of the EIR rather than in a separate section; thus, the geological analysis of alternatives would be set forth in the geology section of the EIR, and so forth.” (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 1996) § 15.24, p. 606, italics added.) The second method described above was used here.
The majority also says the analysis of alternatives was inadequate because it focused primarily on identifying less intrusive methods of harvesting instead of providing a description of other activities or projects. However, THP’s, like EIR’s, are subject to a “ ‘rule of reason’ ” that requires only a discussion of alternatives necessary to permit a reasoned choice. “The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Regs., § 15126, subd. (d)(5).) The discussion of alternatives here satisfied this requirement fully.
Finally, the majority says the THP should have discussed alternative harvesting plans such as one that “would have preserved the larger and old-growth trees on the site but would have allowed logging to go forward,” or an alternative that would have allowed “interested persons ... to purchase the stand.” (Maj. opn., ante, at p. 1405.) The first of these alternatives was discussed and, in fact, was an essential component of the proposed THP. Under the proposed plan, “The largest trees and those showing wildlife habitat characteristics” were to be left as specimens. The majority’s second alternative violates the “ ‘rule of reason’ ” discussed above. It is unreasonable and without statutory or regulatory support to require one who wishes to conduct a limited timber harvest on his own property to engage in the fiction of discussing the possible sale of that property as an “alternative plan” in order to receive a THP when the owner has posited no intention of doing so. Nothing contained in the Public Resources Code and the Department’s regulations indicates an application for a modified THP—an admittedly *1414 truncated procedure to aid the small landowner—is intended to trigger a sale of the applicant’s property as an alternative to receipt of the permit for which application is made.
I conclude the trial court here erred when it issued a preemptory writ of mandate compelling the Department to rescind its approval of the modified THP at issue. I would reverse.
A petition for a rehearing was denied March 27, 1997, and the petition of real parties in interest for review by the Supreme Court was denied May 21, 1997. Baxter, J., and Brown, J., were of the opinion that the petition should be granted.
All subsequent references to the California Code of Regulations, title 14 will be to Regulations.
Unless otherwise indicated, all subsequent statutory references are to the Public Resources Code.
Regulations section 1051 provides: “(a) On an ownership of 100 acres or less of timberland, a modified [THP] may be filed by a plan submitter, providing that the following conditions and mitigations are met:
“(1) No more than 70% of any existing tree canopy layer is to be harvested on parcels 40 acres or less, and not more than 50% on parcels 41-100 acres. The canopy retained shall be well distributed over the harvest area. Not more than 10% of the THP area shall be harvested under the rehabilitation method. A sample area must be marked before submission of the THP. The sample area shall include at least 10% of the area which is representative of the range of conditions present in the area.
“(2) Clearcutting and shelterwood removal, as defined in [Regulations section] 913.1(b) and (d) [933.1(b) and (d), and 953.1(b) and (d)] shall not be used, except for legally deeded *1407 rizhts-of-wav or easements for utility purposes which are documented in the plan by the RPF [registered professional forester] by reference to specific deeds or surveys.
“(3) Stocking standards, specific to the silvicultural method selected, must be met immediately after harvesting operations are completed.
“(4) No heavy equipment operations on slopes greater than 50%, or on areas with high or extreme erosion hazard ratings.
“(5) No construction of new skid trails on slopes over 40%.
“(6) No timber operations in Special Treatment Areas except log hauling on existing roads not requiring reconstruction.
“(7) No timber operations on slides or unstable areas.
“(8) New road construction is confined to 600 feet and a l,000;foot limit total of road construction and reconstruction combined.
“(9) No heavy equipment operations within a watercourse or lake protection zone [WLPZ], meadows, or wet areas, except for maintenance of existing roads, drainage facilities or structures.
“(10) No listed species will be directly or indirectly adversely impacted by proposed timber operations. For timber operations which potentially could adversely affect a listed species or the habitat of the species, the consultation process with [the Department] pursuant to Fish and Game Code [sections] 2090 or 2091 shall be completed before the THP is approved.
“(11) Timber harvesting is only allowed in the WLPZ if: 1) sanitation-salvage harvesting is the only silvicultural system to be used in the WLPZ and it must be in compliance with [Regulations sectionsl 916.4[(6)] [936.4[(6)]> 956.4[(Z>)]] . . . ; or 2) if harvesting removes no more than 30% of any existing canopy layer. Harvesting under 2) above shall not occur again in the WLPZ for a 10-year period following completion of the THP.
“(12) No timber operations within potentially significant archeological sites.
“(13) No alternatives, exceptions, or in-lieu practices allowed for watercourse or lake protection measures, standard road and landing widths, or erosion control measures, except for use of existing roads within WLPZ after RPF compliance with examination, evaluation, and mitigation(s) per [Regulations sections] 916.4(a) [936.4(a), 956.4(a)].
“(14) Winter timber operations except as conditioned by the Director to avoid potential significant cumulative impacts shall be in accordance with [Regulations sections] 914.7(a) and (b) [934.7(a) and (b), 954.7(a) and (b)].
“(15) Harvesting will not reduce the amount of the timberland occupied by late succession forest stands currently greater than or equal to 5 acres in size.
“(16) In addition to (1)-(15) all other rules of the Board shall apply to operations specified in this section.” (Italicized brackets are added; underscored material is corrected errors in spelling and punctuation.)
The majority’s uncritical acceptance of Wickham’s obviously unsubstantiated conclusions illustrates one of the major problems an administrative agency must face when deciding whether to prepare an environmental impact report (EIR) or some equivalent document. An agency in that situation will commonly receive information from various persons, some of whom claim to possess expert qualifications. However, since the information is usually received in an informal setting and is not subject to cross-examination, it is often difficult to determine if the “expert” possesses the qualifications he claims; or if he possesses some qualifications, whether they are relevant to the issue under consideration. Where, as here, the record clearly shows a person is making predictions that he is not qualified to make, I believe a court should ignore those predictions and defer to the administrative agency’s findings. (Cf. *1410 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1400 [ 43 Cal.Rptr.2d 170 ] (Gentry) [Even under the “fair argument” test, a lead agency “has some discretion to determine whether particular evidence is ‘substantial.’ ”].)
“ ‘A witness cut loose from time-tested rules of evidence to engage in purely personal, idiosyncratic speculation offends legal tradition quite as much as the tradition of science. Unleashing such an expert in court is not just unfair, it is inimical to the pursuit of truth. The expert whose testimony is not firmly anchored in some broader body of objective learning is just another lawyer, masquerading as a pundit.’ [Citation.]” (People v. Johnson (1993) 19 Cal.App.4th 778, 789 [ 23 Cal.Rptr.2d 703 ].)
I will assume, arguendo for purposes of my analysis, that a modified THP is required to discuss project alternatives. A strong argument can be made, however, that no such discussion of those alternatives is required. (See Regs., § 15252, subd. (b)(2).)