HERITAGE TREE PRESERVATION ACT (BILL TEXT)

BILL NUMBER: SB 1799

Introduced February 24, 2006
Introduced By Senator Perata

BILL TEXT

An act to add Article 7.6 (commencing with Section 4595) to Chapter 8 of Part 2 of Division 4 of the Public Resources Code, relating to forest resources.
LEGISLATIVE COUNSEL'S DIGEST

SB 1799, as introduced, Perata Forest resources: heritage trees.

(1) Existing law contains various provisions designed to encourage responsible forest resource management calculated to serve the public's need for timber and other forest products, while giving consideration to the public's need for watershed protection, fisheries and wildlife, and recreational opportunities.

This bill would enact the Heritage Tree Preservation Act to prohibit (1) cutting or causing a substantial probability of significant harm to any heritage tree, as defined, in this state, (2) using a heritage tree, as defined, in a manner that significantly harms a heritage tree, and (3) cutting a heritage tree pursuant to certain statutory and regulatory exemptions. The act would prohibit the State Board of Forestry and Fire Protection from adopting any regulation that requires or authorizes the cutting of, or significant harm to, a heritage tree.

This bill would establish the Heritage Tree Preservation Fund in the State Treasury. The bill would authorize the Wildlife Conservation Board to expend the moneys in the fund, upon appropriation by the Legislature, for purposes of the act, including the administrative costs of the board in implementing the act. This bill would require all timber operations to comply with the act, except as specified. This bill would prescribe the criminal and civil penalties for action taken in violation of any provision of the act. By making a violation of these provisions a crime, this bill would impose a state-mandated local program.

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

 THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Article 7.6 (commencing with Section 4595) is added to Chapter 8 of Part 2 of Division 4 of the Public Resources Code, to read:

Article 7.6. Heritage Tree Preservation Act

4595. This article shall be known, and may be cited as, the Heritage Tree Preservation Act.

4595.1. The Legislature finds and declares all of the following:
(a) Most of California's original old-growth forests have been cut down.
(b) Currently, no state or federal statute bans the cutting of most old-growth trees in the State of California.
(c) California's remaining old-growth trees are a unique natural treasure. California tree species include the tallest, largest, and some of the oldest living things on Earth. Some California tree species live to be thousands of years old.
(d) Numerous threatened and endangered species depend upon ancient and old-growth trees for their survival.
(e) Old-growth trees and mature forests store more carbon, a component of the greenhouse gas, carbon dioxide, than young trees and tree plantations do. Some California old-growth forests sequester more carbon than any other forest type on Earth, reducing global warming from industrial and other emissions.
(f) Most of California's surface water originates in forested areas.
(g) Old-growth forests are a rare and threatened forest type. Individual old-growth trees are building blocks for restoring natural forest structure and maintaining ecological diversity.
(h) People from all over the world come to California to see our heritage of ancient trees, which benefits the economy of California.
(i) Whenever appropriate funding sources are available, acquisition of old-growth forests from willing sellers should be a priority for the Wildlife Conservation Board, Department of Parks and Recreation, State Coastal Conservancy, California Tahoe Conservancy, and other public agencies with land conservation responsibilities, so that they may be protected for their environmental, recreational, educational, and aesthetic values and for the enjoyment and appreciation of present and future generations of residents and visitors.
(j) Each old-growth tree, living since before statehood, has aesthetic and historic significance, often providing significant benefits to land, air, water, flora, fauna, and noise reduction.
(k) The preservation of heritage trees, heritage tree buffer zones, and biologic reserves is a compatible use in timberland production zones within the meaning of subdivision (h) of Section 51104 of the Government Code.
(l) The risk of severe fires is increased by removing large, fire-resistant, old-growth trees from the forest, because those trees shade out flammable undergrowth and preserve moisture in the forest.
(m) The preservation of heritage trees and biologic reserves is a compatible use in timberland production zones within the meaning of subdivision (h) of Section 51104 of the Government Code.
(n) The people of the state of California encourage counties and cities across the state to preserve old-growth trees within their jurisdictions.
(o) The people of the state of California request that Congress, all federal agencies, and federal land managers extend at least the same protections to old-growth trees on federal lands in California that this measure extends to old-growth trees on nonfederal land.
(p) The loss of the last of California's old-growth heritage is not sustainable.

4595.2.
It is the intent of the Legislature that this article be construed in accordance with the following primary objectives:
(a) To protect old-growth trees in the State of California, in the interest of heritage preservation and ecosystem conservation, for the benefit of present and future generations.
(b) To maintain the ability of ancient and old-growth trees to sequester carbon, thereby helping to avoid an increase in the level of greenhouse gases in the atmosphere.
(c) To maintain the ability of ancient and old-growth trees to transpire water and to provide shade and large woody debris to streams, rivers, and creeks.
(d) To provide habitat for endangered and threatened wildlife species that are dependent on or associated with old-growth trees.
(e) To encourage, as appropriate, the retention of old, large, dead, dying, or deteriorating trees that provide necessary habitat for wildlife and nutrients essential for forest health, and retain moisture that enhances water quality and quantity.
(f) To ensure that timber operations and other operations within heritage tree buffer zones are modified and conducted to be consistent with this article and to protect the integrity of the heritage trees.

4595.3. The following definitions apply to this article:
(a) "Emergency" means a sudden, unexpected occurrence demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. "Emergency" may include fire, flood, earthquake or other soil or geologic movements, as well as riot, accident, or sabotage.
(b) "Forestland" means land, other than land owned by the federal government, that was, as of the effective date of this section, available for and capable of growing a crop of trees of any commercial species used to produce lumber and other forest products, including Christmas trees. Commercial species are those species so designated by the board.
(c)
(1) "Heritage tree" means any old-growth tree on forestland, and listed in paragraph (2), that has at least the minimum diameter at stump height, measured outside the bark, as specified in paragraph (2) for that species. "Heritage tree" means all stems of multistemmed trees on forestland, and listed in paragraph (2), that have a stem that is an old-growth tree and for which the sum of the cross-sectional areas of all of the stems at stump height, measured outside the bark, is equal to or greater than the area of a circle with the diameter specified in paragraph (2) for that species. For Coast redwood, a multistemmed tree includes only those stems that are cojoined at the surface of the bark at stump height.
(2) The minimum diameter at stump height is the following for the following tree species:
(A) Coast redwood: 42 inches.
(B) California Red fir: 40 inches.
(C) Douglas-fir: 40 inches.
(D) Grand fir: 32 inches.
(E) Giant sequoia or sierra redwood: 50 inches.
(F) Hardwoods: 28 inches.
(G) Incense-cedar: 40 inches.
(H) Monterey pine: 36 inches.
(I) Port Orford cedar: 28 inches.
(J) Jeffrey pine: 36 inches.
(K) Lodgepole pine: 28 inches.
(L) Ponderosa pine: 34 inches.
(M) Sugar pine: 40 inches.
(N) Western Juniper: 40 inches.
(O) Western White pine: 32 inches.
(P) White fir: 44 inches.
(d) "Old-growth tree" means any tree that has a stem that existed in 1850.
(e) "Stump height" means the height at which a tree was cut from the stump if cut, or 12 inches above the ground on the side adjacent to the highest ground level, whichever is closest to the ground.

4595.4.
(a) Except as authorized by this section and Section 4595.5, the following apply:
(1) A person shall not cut or cause a substantial probability of significant harm to a heritage tree in the state. Timber and other operations shall be modified and conducted to be consistent with this article and shall protect the integrity of a heritage tree. All forest practices, where heritage trees are present, shall demonstrably protect the canopy, trunk, roots, and wind-firmness of heritage trees.
(2) A person shall not use a heritage tree in a manner that significantly harms a heritage tree.
(3) A person shall not cut a heritage tree pursuant to any of the exemptions in Section 4584 or 4628 or other statutory or regulatory provision of law.
(4) The board shall not adopt a regulation pursuant to this section or other provision of law that requires or authorizes the cutting of, or significant harm to, a heritage tree.
(b) The basal areas and point counts of heritage trees shall be limited to the value of the minimum diameter at stump height for the species shown in paragraph (2) of subdivision (c) of Section 4595.3.
(c) Prior to a preharvest inspection, all heritage trees within a plan shall be personally marked for retention by a registered professional forester.
(d) A heritage tree may be cut or harmed if it is necessary in an emergency.
(e) A heritage tree may be cut or harmed under any of the following conditions:
(1) The tree poses an imminent danger of falling into a utility line or facility.
(2) The tree poses an imminent danger to a utility employee or member of the public.
(3) The tree poses an imminent danger of falling on a residence, hotel, motel, lodge, or other similar place of human habitation, registered historic building, or site of cultural or archaeological importance.
(f) Heavy equipment associated with timber operations is excluded from within a horizontal radius of 100 feet of a heritage tree of the Port Orford cedar or giant sequoia species, except upon permanent roadways in existence on January 1, 2006.
(g) Roads may be built within a horizontal radius of 100 feet of a heritage tree of the Port Orford cedar or giant sequoia species only if there is no other feasible routing that avoids greater environmental harm, if the construction, maintenance, and use does not endanger the stability, health, and longevity of the heritage trees, and if the road is for the construction and maintenance of any of the following:
(1) A permanent public road by a government agency.
(2) An access way or driveway to reach a government-owned facility.
(3) An access to a utility line or facility.
(4) A private road or driveway as the sole access to a structure for human habitation.
(5) A public fire protection agency community fire break.
(h) A heritage tree may be sanitation logged if all of the following occur:
(1) A registered professional forester certifies in a form prescribed by the board that the tree is dead or dying.
(2) The director concurs with the registered professional forester' s certification that there is a substantial likelihood of the spread of disease or insect infestation to surrounding trees if the diseased or infested tree is not immediately removed. If the director concurs with the certification, the director shall sign the concurrence.
(i) A prescribed burn for the purpose of reducing the risk of harm to a heritage tree due to fire hazard, insects, disease, or invasive species may be conducted at the direction of the governmental agency responsible for fire suppression. Prior to the prescribed burn, accumulated fuels shall be manually pulled away from each heritage tree within the anticipated area of the prescribed burn to minimize the risk of harm to the heritage tree.
(j) Measures including bracing, tree and limb cabling and guying, cutting away and sealing of infected or infested tissues, balancing, reducing windsail of branches, and applying or injecting protective agents may be performed upon a heritage tree if solely for the bona fide purpose of protecting, enhancing, and extending the wind-firmness, stability, health, or longevity of the heritage tree.
(k)
(1) All environmental documents, as defined in paragraph (3), shall indicate on the face of the document whether a heritage tree is present within the area covered by the environmental document.
(2) If an environmental document submitted to the department indicates on its face that a heritage tree is present within the area covered by the environmental document, the department shall include that indication in a notice of filing of timber harvesting plans made by the department under Section 4582.4.
(3) For purposes of this subdivision, "environmental document" means a timber harvesting plan, program timber harvesting plan, program timberland environmental impact report, nonindustrial timberland management plan, modified timber harvesting plan, any other timber operations plan, notice of emergency timber operations, an exemption notice pursuant to Section 1038 or 1104.1 of Title 14 of the California Code of Regulations as those sections read on January 1, 2003, other notice of timber operations, plan amendment, categorical exemption filing, or construction, grading, or use permit application submitted to a state or local agency.
(l) At the direction of an electrical corporation or local publicly owned utility, a heritage tree may be pruned or cut as necessary to comply with an order or tariff of the California Public Utilities Commission, the Federal Energy Regulatory Commission, the California Independent System Operator, or the Department of Transportation's Office of Pipeline Safety. In siting a new facility, consideration shall be given to the proximity of heritage trees.
(m) As minimally necessary in order to minimize the vertical continuity of vegetative fuels, heritage trees may be pruned from the ground to a height and in a manner to be determined by the board, when part of a bona fide fuelbreak surrounding a structure for human habitation in compliance with Sections 4290 and 4291 where surface fuels have been removed and the pruning will result in a reduction of fire spread, fire duration and intensity, fuel ignitability, or ignition of the tree crown. The pruning of a heritage tree shall be solely for the purpose of fire threat reduction and be in accordance with a statute enacted, or regulation adopted by the board, in implementation of this section. Pruning pursuant to this section may not significantly harm a heritage tree.
(n) This article does not require a revision of a management plan for the Jackson State Demonstration Forest approved prior to January 1, 2010.
(o) This article does not require a revision of nonindustrial timber management plan documents for a nonindustrial timber management plan approved prior to January 1, 2007, until a change of ownership of the land described in the nonindustrial timber management plan occurs or the nonindustrial timber management plan is amended. It is a nonsubstantial deviation from the approved timber management plan to substitute a like volume of timber as replacement volume for a heritage tree designated for harvest in the plan, distributed across younger age classes to achieve or maintain an uneven aged timber stand and sustained yield.
(p) All environmental documents, except a construction, grading, or use permit application not submitted to the department, a notice of emergency timber operations given pursuant to subdivision (d) or (e) of Section 4595.4, and an exemption notice given pursuant to subdivision (k) of Section 4595.4, shall contain the statement "No heritage tree shall be cut or caused a substantial probability of significant harm." The board may permit the department to rely upon that statement, as appropriate, without field inspection to determine the presence or absence of heritage trees, or the probability of harm to a heritage tree, in the plan approval process.
(q)
(1) A person who cuts or directs the cutting of a heritage tree shall file with the department a signed, written notice of cutting a heritage tree, within two working days after the cut. The board shall prescribe the form for the notice, which shall require a description of the location and the reason for cutting the heritage tree. The board shall provide notice of the filing of a notice of cutting a heritage tree to a person who requests the notice in writing.
(2) This subdivision does not apply to a firefighter acting within his or her official duties and pursuant to subdivision (d).
(r) This section does not exempt the owner of timber harvested from registering with the State Board of Equalization or from the payment of any applicable timber yield taxes imposed pursuant to Part 18.5 (commencing with Section38101) of Division 2 of the Revenue and Taxation Code.

4595.5.
(a) A person whose timber operations comply with an existing forestland management plan approved by an independent certification organization prior to January 1, 2005, and that meets all of the requirements set forth in paragraphs (1), (2) and (3) in their entirety, shall be considered in compliance with Section 4594.2, if that person complies with subdivision (q) of Section 4594.4, and the registered professional forester (RPF) submitting an environmental document, as defined in subdivision (k) of Section 4594.4, attaches a copy of the forestland management plan that expressly contains all the requirements set forth below without limitation or exclusion, and certifies in writing that the plan does all of the following:
(1) Protects all stands of old-growth trees of 3 contiguous acres or larger that have not been previously entered.
(2) Maintains all stands of old-growth trees 3 contiguous acres or larger that have been previously entered, but that retain old-growth trees, structures, and functions.
(3) Maintains stands that have only residual old-growth trees or other residual late successional stand characteristicss.
(4) Complies with paragraph (1) of subdivision (k) of Section 4594.4.
(b) For purposes of these provisions, where "protect" means that the stands and trees are not harvested, and where "maintain" means all late successional stand growth structures and components are maintained, including individual trees, the forestland management plan shall provide for no net decline in the stand area, or the old-growth characteristics of the stand.
(c) The registered professional forester shall certify in writing that the timber operations to be carried out pursuant to an environmental document submitted to the department, pursuant to subdivision (a), fully comply with the old-growth protection and maintenance provisions of the certified forest management plan.
(d) If it is determined that the timber operations are not being carried out consistent with the old-growth protection and maintenance provisions of the certified forest management plan, or that the certified forest management plan is no longer in effect, the requirements of Section 4595.2 shall apply.

4595.6.
(a) An agent of the state who is responsible for allocating moneys, credits, or other benefits for preservation of endangered species and natural lands, including, but not limited to, conservation easements, purchases, and purchases of development rights and other interests, may provide assistance to owners of heritage trees in obtaining these benefits if available. The benefits include, but are not limited to, state partnership grants under Section 6 of the federal Endangered Species Act (16 U.S.C. Sec. 1535), grants under Title VIII of the federal Department of the Interior and Related Agencies Appropriations Act of 2001 (Land Conservation, Preservation and Infrastructure Improvement Act, P.L. 106-291), and grants under the federal Land and Water Conservation Fund Act of 1965 (P.L. 88-578), or any successor provisions of law, and moneys in the Heritage Tree Preservation Fund established by Section 4595.7. Moneys obtained from these or other sources, for the purpose of carrying out this article, that are not distributed directly to property owners, pursuant to this article, may be deposited into the fund..
(b) The Wildlife Conservation Board shall spend moneys in the fund for the purchase of fee title or of interests in real property of heritage trees protected pursuant to this article. An interest in real property shall be for a period of time that is not less than the natural life of the heritage trees protected, in order to protect the integrity and value of the heritage tree and to provide habitat for associated wildlife species.

4595.7.
(a) The Heritage Tree Preservation Fund is hereby established in the State Treasury. Upon appropriation by the Legislature, the moneys in the fund may be expended by the Wildlife Conservation Board for the purposes of this article and for the administrative costs in implementing this article.
(b) Moneys from any source may be deposited in the fund. The Wildlife Conservation Board may accept gifts for deposit into the fund. Proceeds from the sale of gifts of real property or interests in real property by the Wildlife Conservation Board may be deposited into the fund. The Wildlife Conservation Board shall retain for public ownership gifts of real property or interests in real property that would have qualified for purchase under subdivision (f).
(c) All moneys deposited in the fund and income generated by moneys in the fund shall be available for expenditure by the Wildlife Conservation Board to carry out the purposes of this article.
(d) An appropriation or expenditure of moneys in, or income generated by, the fund, for a purpose that is not authorized by this article is void.
(e) Moneys in the fund shall not be appropriated or expended to repay the principal of a bond, to pay the interest on a bond, or to refund a bond. Moneys in the fund shall not be lent or pledged for any purpose.
(f) Income generated by, and the principal of, the fund are available for the direct, permanent protection of old-growth trees, which includes, but is not limited to, fee title acquisition and conservation easement acquisition.

4595.8.
(a)
(1) A person who performs, conducts, orders, or directs timber operations or other action in violation of this article is subject to the penalties of Article 8 (commencing with Section 4601) of this chapter, and an additional civil penalty in an amount that is equal to the greater of one of the following:
(A) The amount of the proceeds, value, or income received or promised in connection with the violation.
(B) The amount of the anticipated economic benefit to be derived as a result of the violation, if the amount can be reasonably determined.
(C) Three times the fair market value of the tree affected by the violation.
 
(2) Moneys collected from the additional civil penalty authorized by paragraph (1) shall be deposited in the Heritage Tree Preservation Fund. In addition to other penalties imposed by law, the court may seize and confiscate the proceeds, value, or income from the sale of an illegally cut tree. If an illegally cut tree has not been sold, the court may order the tree to be confiscated and sold. If an illegally cut tree is of the genera Sequoiadendron or Sequoia and it has not been removed from the forest or sold, the court may order that the tree remain in the forest. All proceeds, after actual expenses, from the sale of a tree pursuant to this subdivision shall be deposited in the fund.
(b) The penalties and remedies of this section are concurrent and not alternative to other civil, criminal, or administrative rights, remedies, or penalties for that violation.
(c) For purposes of this article the time period for commencing a civil action subject to Section 338 of the Code of Civil Procedure shall be within 3 years after the cause of action is deemed to have accrued. The cause of action is not deemed to have accrued until the discovery by the department of the facts constituting the grounds for commencing the action.

4595.9.
(a) All timber operations shall comply with this article.
(b) This article is enforceable by a state or local public officer having appropriate jurisdiction.
(c) The board shall adopt regulations that the board considers necessary to implement and to obtain compliance with this article and to protect life, property, and the environment.
(d) The board shall adopt regulations, initially as emergency regulations in accordance with subdivision (e), that the board considers necessary to implement and to obtain compliance with Section 4595.4, Section 4595.5, and subdivision (a) of Section 4595.8, and to protect life, property, and the environmentt.
(e) The emergency regulations adopted pursuant to subdivision (d) shall be adopted in accordance with the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). For purposes of that chapter, including Section 11349.6 of the Government Code, the adoption of emergency regulations shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public peace, health and safety, and general welfare.

SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.


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