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SB 754 The Heritage Tree Preservation Act
This bill
language contains amendment language that was offered at the Assembly
Natural Resources but not yet approved by the Legislative Counsel.
MOCK UP as amendments offered in Assembly Natural Resources
AMENDED IN ASSEMBLY JUNE 19, 2003
AMENDED IN SENATE JUNE 3, 2003
AMENDED IN SENATE MAY 7, 2003
SENATE BILL No. 754
Introduced by Senator Perata
February 21, 2003
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 754, as amended, Perata. Heritage trees.
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 or
heritage tree buffer zone, as defined, in a manner that significantly
harms a heritage tree, and (3) cutting a heritage tree pursuant to certain
statutory and regulatory exemptions.
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. 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. 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) The loss of each old-growth tree has a significant effect on the environment
within the meaning of the California Environmental Quality Act. 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.
(j) The preservation and maintenance of old-growth trees, native vegetation,
and wildlife on forestland provide a biologic reserve, and provide benefits
to the biological diversity, resilience, and productivity of forestland.
(k) 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.
(l) 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.
(m) The people of the State of California encourage counties and cities
across the state to preserve old-growth trees within their jurisdictions.
(n) 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.
4595.2. (a) It is the intent of the Legislature that this article be construed
in accordance with the following primary objectives:
(1) 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.
(2) To maintain the ability of ancient and old-growth trees to vsequester
carbon, thereby helping to avoid an increase in the level of greenhouse
gases in the atmosphere.
(3) 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.
(4) To provide habitat for endangered and threatened wildlife species
that are dependent on or associated with old-growth trees.
(5) To encourage, as appropriate, the retention of dead, dying, downed,
or deteriorating trees that provide necessary habitat for wildlife and
nutrients essential for forest health and retain moisture that enhances
water quality and quantity.
(6) 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.
(b) It is not the intent of the Legislature that this act discourage people
from growing large trees in long rotation cycles for timber production,
or for other private and public trust purposes.
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.
(2) The minimum diameter at stump height is the following for the following
tree species:
(A) Coast redwood: 42 inches.
(B) Douglas-fir: 40 inches.
(C) Giant sequoia or sierra redwood: 50 inches.
(D) Hardwoods: 28 inches.
(E) Port Orford cedar: 28 inches.
(d) ''Heritage tree buffer zone'' means an area of protection surrounding
a heritage tree of Giant sequoia or Port Orford cedar. The heritage tree
buffer zone for a heritage tree of Giant sequoia has a horizontal radius
of 100 feet. The heritage tree buffer zone for a heritage tree of Port
Orford cedar has a horizontal radius of
35 feet. Any tree for which the trunk at stump height is completely or
partially within the area of a buffer zone is in the buffer zone.
(e) ''Old-growth tree'' means any tree that has a stem that existed in
1850.
(f) ''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, the following apply:
(1) A person may not cut or cause a substantial probability of significant
harm to any 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 any heritage tree.
(2) A person may not use a heritage tree or heritage tree buffer zone
in a manner that significantly harms a heritage tree.
(3) A person may not cut a heritage tree pursuant to any of the exemptions
in Section 4584 or 4628 or any other statutory or regulatory provision
of law.
(b) (1) Except as authorized by this section, a native tree larger than
eight inches in diameter at stump height may be cut within a heritage
tree buffer zone only by a single-tree selection management method.
(2) A heritage tree within a heritage tree buffer zone may not be harvested
or significantly harmed.
(3) Except as authorized by this section, stocking standards adopted by
the board pursuant to Section 4561.1 shall be the same or stricter for
each heritage tree buffer zone as adopted for the same site classification
in the same district.
(4) Retained trees to meet the stocking standards of this chapter shall
be comprised of the largest native trees within the stand prior to harvest.
Prior to any preharvest inspection, the boundaries of the heritage tree
buffer zone shall be personally flagged, and all trees to be harvested
within a heritage tree buffer zone shall be
personally marked on both the trunk and the stump, by a registered professional
forester.
(5) All forest practices within the heritage tree buffer zone shall demonstrably
protect the canopy, trunk, roots, and wind-firmness of heritage trees.
Heavy equipment associated with timber operations is excluded from any
heritage tree buffer zone, except upon a permanent roadway in existence
on January 1, 2004.
(6) A period of at least 10 years shall elapse before reharvesting a heritage
tree buffer zone under this subdivision, except for the removal of a nonnative
tree.
(7) Slash burning may not be conducted within a heritage tree buffer zone.
(8) At least 50 percent of the native understory vegetation present before
the commencement of timber operations shall be left living and well distributed
within the heritage tree buffer zone to maintain soil stability.
(9) The site or habitat, respectively, of a rare, threatened, or endangered
plant or animal may not be disturbed, threatened, or damaged.
(c) The basal areas and point counts of heritage trees may not be included
or used to meet the stocking standards of this chapter.
(d) If there is no other feasible routing that avoids greater environmental
harm and if the cutting, construction, and maintenance does not endanger
the stability, health, and longevity of the heritage trees, trees, other
than the heritages trees, may be cut as necessary within a heritage tree
buffer zone 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 an approved and legally
permitted structure for human habitation that complies with the California
Building Code.
(5) A public fire protection agency community fire break.
(e) A heritage tree or any tree within a heritage tree buffer zone may
be cut or harmed if it is necessary in an emergency.
(f) A heritage tree or any tree within a heritage tree buffer zone 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.
(g) A heritage tree or any tree within a heritage tree buffer zone 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.
(h) 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.
(i) Measures such as 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.
(j) (1) Each environmental document, as defined in paragraph (3), shall
identify and inventory all heritage trees within the area covered by the
environmental document. The environmental document shall describe the
measures to be taken to protect a heritage tree, if any heritage trees
are believed to be present. Each
environmental document shall indicate on its face whether heritage trees
are 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 or heritage tree buffer zone is present
within the area covered by the environmental document, the department
shall provide notice of the filing of the environmental document to any
person who requests the notification in writing.
(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 any construction, grading, or use permit application submitted
to any state or local agency.
(k) Except as authorized by this section, the following apply:
(1) The board may not adopt a regulation pursuant to this section or any
other provision of law that requires or authorizes the cutting of, or
significant harm to, any heritage tree.
(2) 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.
(l) Upon determining that the exemption is consistent with the purposes
of this article, the board may exempt from this article any person engaged
in forest management within a heritage tree buffer zone whose activities
are limited to the cutting and removal of trees and brush, other than
heritage trees, in compliance with Sections 4290 and 4291. To be exempt,
the cutting or removal of brush shall be for the purpose of eliminating
the vertical continuity of vegetative fuels and minimizing the horizontal
continuity of tree crowns for the purpose of reducing flammable materials
and maintaining a fuelbreak for a distance of not more than 150 feet on
each side from an approved and legally permitted structure for human habitation
that complies with the California Building Code. The cutting or removal
of brush shall be conducted in compliance with this section. 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. Pruning pursuant to this section may not
significantly harm a heritage tree.
(1) The cutting, removal, or pruning of a tree pursuant to this subdivision
is limited to cutting, removal, or pruning of a tree that will result
in a reduction of fire spread, fire duration and intensity, fuel ignitability,
or ignition of the tree crown. The cutting, removal, or pruning of a tree
shall be solely for the purpose of fire threat reduction. The cutting,
removal, or pruning of a tree shall be in accordance with any statutes
enacted, or regulations adopted by the board, in implementation of this
section.
(2) (A) Surface fuels, including logging slash and debris, low brush,
and deadwood that could promote the spread of wildfire, shall be chipped
or removed from all areas of timber operations on or before 45 days after
the date of commencement of timber operations.
(B) (i) If the surface fuels are not removed on or before 45 days after
the date of commencement of timber operations, the surface fuels may be
determined to be a nuisance and may be subject to abatement by the department
or the city or county having jurisdiction.
(ii) The department, city, or county, as the case may be, that abates
the nuisance upon any parcel of land subject to the timber operations,
may recover costs including, but not limited to, those costs related to
investigation, boundary determination, and measurement, by a special assessment
or lien against the parcel of
land by the department, county, or city. The special assessment may be
collected at the same time and in the same manner as ordinary ad valorem
taxes, and is subject to the same penalties and the same procedure and
sale in case of delinquency that is provided for ad valorem taxes.
(3) The site or habitat, respectively, of a rare, threatened, or endangered
plant or animal may not be disturbed, threatened, or damaged.
(m) This article does not require a revision of the Jackson Demonstration
State Forest management plan.
(n) This section does not exempt the owner of any timber harvested from
registering with the State Board of Equalization or from the payment of
any applicable timber yield taxes imposed pursuant to Section 38115 of
the Revenue and Taxation Code.
4595.5. (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 and heritage tree buffer
zones 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, 2001 (Land Conservation, Preservation and Infrastructure Improvement,
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 4595.6.
Any moneys obtained from
these or any 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 and heritage tree buffer zones 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 or heritage
tree buffer zone and to provide habitat for associated wildlife species.
4595.6. (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.
(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 any 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 any 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 any purpose that is not authorized by this article is
void.
(e) Moneys in the fund may not be appropriated or expended to repay the
principal of any bond, to pay the interest on any bond, or to refund any
bond. Moneys in the fund may 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.
4595.7. (a) (1) Any person who performs, conducts, orders, or directs
timber operations or any 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) Any moneys collected from the additional civil penalty authorized
by paragraph (1) shall be deposited in the Heritage Tree Preservation
Fund. In addition to any 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 any other civil, criminal, or administrative rights, remedies,
or penalties for that violation.
(c) The time period for commencing a civil action pursuant to Section
338 of the Code of Civil Procedure shall be within three 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.
4595.8. (a) All timber operations shall comply with this article.
(b) This division is enforceable by any 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 and subdivision
(a) of Section 4595.7, and to protect life, property, and the environment.
(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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