Back in 2018, California Governor Jerry Brown signed a lengthy bill entitled “Wildfires,” which modified and adopted many California code sections relating to fire and forest management. As described in our previous post, one of those new code sections modified California’s conservation easement enabling statute, adding Civil Code section 815.11 and confusing and worrying conservation practitioners across the state. Governor Newsom just signed new A.B. 2966 into law on July 19, repealing section 815.11 as of December 31, 2022, and replacing it with Public Resources Code sections 4751 – 4752.

Fortunately, this provision is no longer housed in the conservation easement statute. Unfortunately, the relocated provision may still have unintended consequences for agricultural and rangeland conservation easements.

Old Law:

As a reminder, section 815.11 required that, for any conservation easement purchased with state funds where the conservation easement encumbers land that includes “some forest lands,” the landowner must adopt a forest management plan to:

…maintain and improve forest health through promotion of a more natural tree density, species composition, structure, and habitat function, to make improvements that increase the land’s ability to provide resilient, long-term carbon sequestration and net carbon stores as well as watershed functions, to provide for the retention of larger trees and a natural range of age classes, and to ensure the growth and retention of these larger trees over time.

This requirement did not apply where it would conflict with federal law or the terms of any applicable bond or the requirements of any other funding source.

When the statute was passed, conservation practitioners were alarmed because the new section was housed in the conservation easement enabling act and was vague and over-encompassing in its applicability – e.g., does “some forest land” mean 10 trees? 100 trees? How close do they need to be to each other? What kind of trees? What if you have an orchard or a palm tree garden?

New Law:

New Public Resources Code sections 4751 – 4752 are nearly identical to Civil Code section 815.11, but the law now provides more guidance regarding the type of land that its requirements will apply to. Now we know that, as of January 1, 2023, these requirements will only apply to land that:

  1. Is in a Timberland Protection Zone or consists of at least 40 acres, and
  2. Can support 10-percent native tree cover of any species, including hardwoods, under natural conditions, and
  3. Allows for management of one or more forest resources, including timber, aesthetics, fish and wildlife, biodiversity, water quality, recreation, and other public benefits.

This 10% native tree cover definition is derived from the definition of “forest land” for the California Forest Legacy Program, found at Public Resources Code section 12220(g).

The new Public Resources Code section 4751 also clarifies that the forest management requirements do not apply to conservation trail easements, where the primary purpose of the easement is for public access to a trail.

The Problem:

Section 815.11 needed clarification and is much more appropriately codified in the Public Resources Code rather than the conservation easement enabling act found at Civil Code section 815, so I am glad to see this progress. There continues to be room for improvement in the next legislative session.

New Public Resources Code section 4751 is unintentionally over-expansive despite the new definition of “forest land.” Ten percent of native tree cover is an extremely low threshold. The new definition is broad enough to apply the statute’s requirements to most non-residential areas in California, including orchards, farmland, and rangeland.

Arguably, orchards, farmland, and rangeland are lands that “can support 10% native tree cover” and “allow for management of … aesthetics … and other public benefits.”

This statute may continue to pull in many unsuspecting landowners that would not typically be classified as “forest owners” by the common understanding of that term. The new definition of “forest land” is derived from the Forest Legacy Program codified at Public Resources Code section 12220, which is a competitive funding program for landowners to voluntarily conserve their forests. Understandably, the definition of forest land in that program is expansive, so that more applicants will be eligible to apply for the funding. Rangeland and agricultural operators would not succeed in winning funding under that competitive program (and likely would never apply), so the expansiveness of the definition there is not problematic. However, the definition is too expansive for purposes of requiring a forest management plan and implementing the forest management goals found in new Public Resources Code section 4751.

As drafted now, the new statute’s requirements will surprise and maybe even discourage agricultural conservation easement project proponents who do not plan to prepare, nor have any experience preparing, forest management plans, and who do not intend to expand the native forest cover on their agricultural properties. Perhaps the public funding agencies for agricultural conservation easements will not be literal in their interpretation of “forest land,” but there is no guarantee.

Another Solution?

Hopefully, the definition will be narrowed in the next legislative session. There are a few ways to approach the modification.

If the connection to the Forest Legacy Program must be maintained, then the term used in the Forest Legacy Program preamble is “productive forest land” and that may be a better term to use in the next go-round, even if not perfect. Or the Forest Legacy Program definition could be kept, but slightly modified for purposes of section 4751 to increase the percentage of tree cover and require the native trees to actually be present rather than be potentially “supported” by the subject land.

If we can move away from the Forest Legacy Program, then the definition of “timberland” found in Public Resources Code section 4526 could more narrowly tailor the statute’s applicability to the desired landscapes, slightly revised:

In section 4526, the term “timberland” means “land … which is available for, and capable of, growing a crop of trees of a commercial species used to produce lumber and other forest products, including Christmas trees. Commercial species shall be determined by the board on a district basis.”

Finally, the grammarian in me must note that section 4752 is missing a comma between “species composition” and “structure.” Just from reading this blog, you can see how lawyers can be when it comes to textual interpretation… I don’t doubt that someone is going to be fighting about the difference between “species composition structure” and “species composition, structure” at some point. This one is an easy fix in a committee cleanup bill next year.