Big Creek Lumber Co. v. County of Santa Cruz

MORENO, J., Dissenting.

I respectfully dissent. The majority pulls an interpretive rabbit out of a statutory hat by construing Public Resources Code section 4516.5, subdivision (d),1 part of the Z’berg-Nejedly Forest Practice Act of 1973 (§4511 et seq.) (FPA), as preempting only county-imposed limitations on how timber operations occur, and not local restrictions on where these activities take place. This interpretation cannot be reconciled with the language and purpose of section 4516.5, subdivision (d); with the FPA generally; or with common sense. The distinction that the majority draws between county resolutions, rules, and ordinances regulating how logging transpires, and measures controlling where it takes place, breaks down upon passing scrutiny and provides a roadmap for those who would use technical artifices to evade the letter and spirit of the FPA. The Court of Appeal below properly rejected this delusive distinction and concluded that state law preempts the resolutions and ordinances that are at issue here. I agree with the Court of Appeal, and would affirm.

The disputed resolutions and ordinances were adopted by Santa Cruz County (County) in 1999. Of the measures presently before us, two combine to limit timber harvesting to particular zone districts (Santa Cruz County Res. No. 493-99; Santa Cruz County Ord. No. 4577) and the other forbids helicopter staging, service, and loading areas except within certain areas (Santa Cruz County Ord. No. 4572). The question presented here concerns whether these enactments are preempted by the FPA and, in particular, by section 4516.5, subdivision (d). This subdivision states that, except for exercising authority delegated to them by the State Board of Forestry and Fire Protection (Board of Forestry) to require bonds or other surety for the protection of roads, “individual counties shall not otherwise regulate the conduct of timber operations, as defined by this chapter, or require the issuance of any permit or license for those operations.” (Ibid.)

To ascertain the meaning of this language, “we look to the intent of the Legislature in enacting the law, ‘being careful to give the statute’s words their plain, commonsense meaning. [Citation.] If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to *1164determine the Legislature’s intent is unnecessary.’ [Citation.] Additionally, we must interpret [section 4516.5, subdivision (d)] in context with the entire statute and the statutory scheme. [Citation.]” (In re Jennings (2004) 34 Cal.4th 254, 263 [17 Cal.Rptr.3d 645, 95 P.3d 906].)

Following these principles, it is important to note at the outset that the preemption provision replaced a statutory scheme that allowed for county regulation of timber operations above and beyond that undertaken by the state. The FPA is designed to “create and maintain an effective and comprehensive system of regulation and use of all timberlands.” (§ 4513.) Toward this purpose, the FPA creates an architecture for state control over timber operations. As originally enacted, the FPA also allowed counties to, “within the reasonable exercise of their police power . . . adopt rules and regulations by ordinance or resolution which are stricter than those provided under this chapter and its regulations.” (Former § 4516, added by Stats. 1973, ch. 880, § 4, pp. 1614, 1615.)

By the early 1980’s, however, some observers regarded county ordinances as having “essentially prevented the harvest of timber, contrary to the intent of the FPA.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) Sept. 15, 1982, p. 2.) This concern prompted a revision of the FPA in 1982 that replaced county regulation of timber operations with a system in which counties could recommend rules and regulations to the Board of Forestry. As signed into law, the amendments deleted the provisions of the FPA that had allowed for stricter local control over timber operations. (Stats. 1982, ch. 1561, § 2, p. 6164.) At the same time, the measure added section 4516.5 to the law. (Stats. 1982, ch. 1561, § 3, pp. 6164—6165.) Whereas the deleted provisions had endorsed direct local regulation of timber harvesting, section 4516.5 instead allows counties to recommend proposed forestry rules to the Board of Forestry, thereby channeling local concerns through the state agency with principal responsibility for interpreting the FPA. (§ 4516.5, subd. (a).) The Board of Forestry must adopt these proposed rules as regulations if they comport with state law and are necessary to protect the “needs and conditions” of the proposing county. (Id., subd. (b).) Except for this procedure for proposing regulations to the Board of Forestry, and limited, delegated authority to require surety for the protection of roads (id., subd. (e)), the FPA prohibits counties from regulating timber operations. As stated above, “individual counties shall not otherwise regulate the conduct of timber operations, as defined by this chapter, or require the issuance of any permit or license for those operations.” (§ 4516.5, subd. (d).)2

*1165The plain language of this preemption provision offers no support for the interpretation advanced by Big Creek Lumber Co. v. County of San Mateo (1995) 31 Cal.App.4th 418, 424-426 [37 Cal.Rptr.2d 159] (Big Creek I) and adopted by the majority (maj. opn., ante, at p. 1157), to the effect that the statute preempts only county rules, regulations, and ordinances affecting how timber operations occur, while leaving untouched measures addressing where these operations take place. Instead, the preemption provision speaks in terms that are expansive enough to leave no doubt that the Legislature intended to displace all local rules, ordinances, and resolutions specifically regulating timber operations. Section 4516.5, subdivision (d) prohibits county regulation of “the conduct of timber operations.” As Big Creek I and the decision by the Court of Appeal below recognized, “conduct” means “ ‘the act, manner, or process of carrying out (as a task) or carrying forward (as a business, government, or war).’ (Webster’s Third New Internat. Dict. (1970) p. 473.)” (Big Creek I, supra, 31 Cal.App.4th at p. 426; see also Black’s Law Dict. (6th ed. 1991) p. 295 [defining “conduct” as “[p]ersonal behavior; deportment; mode of action; any positive or negative act”].) If we substitute this definition of “conduct” into the statute, section 4516.5, subdivision (d) would provide in relevant part: “Individual counties shall not otherwise regulate the [act, manner, or process] of timber operations, as defined by this chapter, or require the issuance of any permit or license for those operations.” The Court of Appeal below, therefore, accurately discerned that “conduct,” as used in the statute, “necessarily includes the ‘act’ of doing the task at all. Local measures that forbid logging in certain locations ‘regulate the conduct of timber operations’ in those places in the most fundamental way imaginable—by prohibiting it outright.”

The Legislature did not draw a line between permissible “where” and impermissible “how” ordinances both because such a distinction would have no relationship to the impetus for the amendments and because, in practical fact, no such line can ever be drawn. Does an ordinance precluding the clear-cutting method of logging within riparian corridors concern where clear-cutting may take place, or how logging occurs within specified areas? Clearly it does both. What about an ordinance that precludes the use of heavy machinery within county limits? Does that ordinance limit how a business may conduct its affairs (i.e., by using heavy machinery, or not), or where it may operate (i.e., in the county, or not), if it chooses to use that machinery? And does an ordinance barring the yarding of felled trees by helicopter become any more permissible if the county achieves the same goal by drafting the measure so that it forbids the placement of helicopter landing pads anywhere in the county?

*1166True, a regulation may superficially purport to address only how or where timber operations take place. But given the aims of the Legislature in adding section 4516.5 to the FPA, I find it difficult to believe that section 4516.5, subdivision (d) concerns only the form, and not the substance, of county ordinances. To paraphrase the point made by the Court of Appeal below, the Legislature could not have intended to allow counties a continued ability to “essentially prohibit[] the harvest of timber” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) p. 2), through the simple expedient of disallowing said harvesting virtually anywhere in the county. And whatever the Legislature had in mind in enacting section 4516.5, subdivision (d), I doubt that it intended to create a cottage industry in the drafting of local ordinances that appear to regulate only where timber operations may occur, while in actual practice directing how these operations may take place.

From the above, I conclude that section 4516.5, subdivision (d), on its own, directs affirmance of the Court of Appeal, for both the zoning ordinance and the helicopter ordinance regulate the “conduct of timber operations” by directly constraining the “act, manner, or process” of these operations. Yet while the plain language of section 4516.5, subdivision (d) suffices to resolve this case, other provisions of the FPA further establish that the how/where distinction espied by the majority was never contemplated by the Legislature, and that lawmakers sought to abrogate ordinances similar to those involved here.

As enacted, section 4516.5 included a sunset provision that nullified existing county regulations and ordinances regulating timber operations. The sunset provision provided as follows: “Notwithstanding this section or any other provision of state law, any county which regulated the growing or harvesting of timber or the conduct of timber harvesting operations pursuant to an ordinance, rule, or regulation in effect on January 1, 1982, may continue fully to enforce the ordinance, rule or regulation until July 1, 1983. On and after that date, all such local ordinances, rules and regulations, unless adopted pursuant to this section, shall be null, void, and have no force or effect.” (Former § 4516.5, subd. (e), added by Stats. 1982, ch. 1561, § 3, pp. 6164, 6165.)3 This provision on its face renders null and void any and all local ordinances, rules, and regulations “which regulate[] the growing or harvesting of timber or the conduct of timber harvesting operations.” The majority regards comparable language as unambiguously manifesting an intent to outlaw all local regulation of timber operations. (See maj. opn., ante, at p. 1156.) The reasoning embraced by the majority thus begs the following question: Why would the Legislature declare all county ordinances, rules, or *1167regulations regarding timber operations null and void in former section 4516.5, subdivision (e), if in the preceding subdivision it only sought to limit local authority over how timber harvesting could take place?

The FPA’s savings clause, meanwhile, reserves to counties their traditional prerogative of declaring nuisances. (See §4514, subd. (a).) Yet neither the savings clause nor any other provision of the FPA mentions zoning or other locational ordinances, except to provide that in situations where timber harvesting undertaken to minimize fire hazards is exempt from the FPA (thus averting any possibility of conflicts between the FPA and local ordinances), said harvesting must comply with generic zoning ordinances. (§ 4584, subd. (j)(4).) That the Legislature has expressly preserved within the FPA one aspect of local police power (nuisance regulation) but not another (zoning) indicates that the omission of the latter was intentional, not accidental, and that zoning designed to limit timber operations does not escape the preemptive scope of section 4516.5, subdivision (d).4

The analyses and reports prepared for Senate Bill No. 856—the legislation that abrogated local regulatory authority over timber operations and added section 4516.5 to the FPA—shed additional light on the Legislature’s intent in enacting the measure. The Legislature and its staff framed the preemptive effect of the legislation in broad terms. The conference committee report on this measure provided, in pertinent part, “Certain counties (Santa Cruz, Santa Clara, San Mateo, Sonoma, Marin) have adopted forest practice rules and regulations which are stricter than those provided under the Z’berg-Nejedly Forest Practice Act. This bill would take away that power by preempting counties from exercising local control.” (Conf. Com., Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) Aug. 24, 1982, p. 2.) Similarly, the Legislative Analyst’s analysis of the bill provided, “This bill . . . [r]epeals provisions of existing law which authorize counties to regulate timber harvesting more restrictively than provided under the Z’berg-Nejedly Forest Practice Act,” while noting that the legislation “[establishes an alternate process whereby individual counties may recommend to the Board of Forestry for adoption new rules and regulations governing timber operations.” (Legis. Analyst, analysis of Sen. Bill No. 856 (1981-1982 Reg. Sess.) May 24, 1982, p. 1.) Likewise, the enrolled bill report prepared by the Department of Forestry and Fire Protection (Department of Forestry) observed that the *1168legislation “eliminates the authority of individual counties to regulate timber harvesting operations, and establishes instead a procedure for the Board of Forestry to adopt rules to cover local concerns.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) p. 1, italics added.) Noticeably absent from these and other expressions of intent is any indication that the Legislature intended to allow counties continued control over where timber harvesting could occur, and eliminate only local authority over how logging operations are performed.

In sum, the Legislature enacted section 4516.5 in response to local ordinances that had “essentially prevented the harvest of timber, contrary to the intent of the FPA.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) p. 2.) Consistent with the Legislature’s objective, section 4516.5, subdivision (d) prohibits local regulation of “the conduct of timber operations.” The word “conduct,” as used in section 4516.5, subdivision (d), includes both the act of doing something and how it is done. And at the same time that the Legislature enacted section 4516.5, it “sunset-ted” all local rules, regulations and ordinances relating to “the growing or harvesting of timber or the conduct of timber harvesting operations” (former § 4516.5, subd. (e)), using language so sweeping that the majority does not even attempt to address it.5 In my view, these facts establish that section 4516.5, subdivision (d) constrains counties’ ability to directly regulate timber harvesting, regardless of whether said regulations are better described as affecting how logging operations occur or where they take place.

Nonetheless, the majority regards the Legislature as having limited only counties’ authority to regulate how logging transpires. In other words, the majority considers it perfectly acceptable for a county to “essentially prevent[] the harvest of timber” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) p. 2), provided a county does so by regulating where timber harvesting occurs, not how it happens. The majority advances several arguments in support of this interpretation of section 4516.5, subdivision (d). None of these contentions withstand scrutiny.

*1169The majority begins by invoking a presumption against state preemption of “a field covered by municipal regulation when there is a significant local interest to be served that may differ from one locality to another.” (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 707 [209 Cal.Rptr. 682, 693 P.2d 261].)6 The majority restyles this presumption into a “clear indication” rule, announcing that “when local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute.” (Maj. opn., ante, at p. 1149.) Neither IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 93 [2 Cal.Rptr.2d 513, 820 P.2d 1023], which the majority cites for this principle, nor any other decision by this court has ever so augmented the Fisher presumption against state abrogation of local regulations. Instead, the approach adopted by the majority appears to draw from the rule applied in cases involving federal preemption of state law. (See Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 956-958 [17 Cal.Rptr.3d 180, 95 P.3d 422].) The majority transplants this clear indication rule into the context of state preemption of local regulations, but without considering whether the factors that have led courts to recognize the precept in federal preemption cases apply with equal force here. Nor does the majority attempt to devise a coherent approach toward distinguishing those areas in which localities have “traditionally” exercised control from those in which they have not, except to say that “the location of particular land uses” generally qualifies as a traditional subject of local regulation.

Putting these deficits aside, and leaving for another day the question of whether it is appropriate to employ a clear indication rule in disputes involving state preemption of local regulations, there are several'problems with the majority’s application of this approach here. The majority concludes that the Legislature did not clearly indicate its preemptive intent with regard to zoning because section 4516.5, subdivision (d) does not refer to zoning or other locational restrictions expressly or “in terms.” (Maj. opn., ante, at p. 1152.) But the majority cites no authority that has endorsed or even intimated this “magic words” approach to statutory interpretation. Up until now, it has sufficed for the Legislature to make its intentions known in the manner it sees fit, without being required to employ particular terms. The Legislature that enacted section 4516.5, subdivision (d) could not have *1170foreseen that it had to refer to county zoning or other locational ordinances “in terms” for a court to later determine that lawmakers meant to preclude these measures.

Perhaps more important, the “terms” approach subtly invades the province and prerogatives of the Legislature by requiring lawmakers to embrace particular verbal formulations as a prerequisite to judicial recognition of their avowed intent. Our job as jurists is not to make the Legislature jump through linguistic hoops of our own capricious design. “[T]he [majority] does not explain by what authority courts can dictate to legislative drafters the forms in which laws must be written to express the legislative intent. Rather, what is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.” (In re Pedro T., supra, 8 Cal.4th at pp. 1048-1049, fn. omitted.)

This latter criticism has particular force here, given how the majority has rather arbitrarily chosen the “terms” it requires. Section 4516.5, subdivision (d) expressly discusses the substantive terms of the preempted local regulations— i.e., they must concern “the conduct of timber operations.” But the majority rejects this wording as insufficient and unclear. Instead, the majority concludes that the Legislature should have known that it had to expressly address zoning and locational ordinances “in terms” for us to discern a preemptive intent. In other words, the required “terms” involve the manner of regulation, not the substance of these rules. Again, how the Legislature should have foreseen this nuance is anyone’s guess. Undoubtedly, the Legislature will respond to this approach with more detailed and complex statutes that try to anticipate the particular “terms” courts will require in the future. I do not grasp how this will clarify or otherwise improve the law.

Next, the majority claims that the Legislature must have intended that the words “the conduct of,” as used within section 4516.5, subdivision (d), would limit the scope of the preemption provision to how logging occurs; otherwise, the majority asserts, this phrasing would constitute mere surplusage. (Maj. opn., ante, at p. 1155.) The majority reads too much into these three words. This error leads it to adopt a construction of section 4516.5, subdivision (d) so susceptible to abuse and evasion through clever drafting that it violates another principle of statutory interpretation, “[superfluity does not vitiate” (Civ. Code, § 3537), a maxim that directs that the presence of arguably unnecessary terms in a statute should not, by itself, produce an interpretation that will defeat the Legislature’s central aims in enacting the law.

In prohibiting local regulation of “the conduct of timber operations,” the Legislature simply echoed phrasing used elsewhere in the FPA. Specifically, section 4551.5 states, in pertinent part, that rules and regulations adopted by *1171the Board of Forestry “shall apply to the conduct of timber operations.” Pursuant to its authority to regulate “the conduct of timber operations,” the Board of Forestry controls both how timber harvesting occurs and where it takes place. To take two examples of regulations that affect where logging may occur, the Board of Forestry has limited timber harvesting in “channel zones” (Cal. Code Regs., tit. 14, § 916.9, subd. (e)), and near bird nesting sites (id., §§ 919.2-919.3). The use of the phrase “the conduct of’ in section 4551.5, therefore, does not cabin the Board of Forestry’s regulatory authority only to how timber harvesting occurs. And when the Legislature uses the same phrasing in different parts of a statute, all else being equal, we assume that it intends to imbue the terms with the same meaning in each context. (People v. Wells (1996) 12 Cal.4th 979, 986 [50 Cal.Rptr.2d 699, 911 P.2d 1374].) This principle means that the identical “the conduct of’ phrasing in section 4516.5, subdivision (d) does not limit the preemption provision only to county regulations concerning how logging takes place.

The majority also purports to find support for its interpretation in the California Timberland Productivity Act of 1982 (TPA), another statute relating to timber harvesting. (Stats. 1982, ch. 1489, §§ 1-39, pp. 5748-5766.) The TPA seeks to, inter alia, “[d]iscourage premature or unnecessary conversion of timberland to urban and other uses” (Gov. Code, § 51102, subd. (a)(2)) and “[ejncourage investment in timberlands based on reasonable expectation of harvest” (id., subd. (a)(4)). Because conventional taxation methods were regarded as deterring efficient timber operations, the TPA amends but essentially reaffirms a system adopted by a predecessor statute through which timberlands may be placed in “Timberland Preserve Zones” (now referred to as “Timberland Production Zones” or TPZ’s). (See Gov. Code, § 51112, subd. (c); Unkel & Cromwell, California’s Timber Yield Tax (1978) 6 Ecology L.Q. 831, 845.)7 Parcels designated TPZ are assessed for tax purposes based on their value for timber production and compatible uses. (See Rev. & Tax. Code, §§431, 434.5, 435.) This scheme thus affords a measure of tax relief to those who grow and harvest timber.

The majority stresses that various provisions of the TPA that relate to TPZ designations mention and rely upon local zoning authority. (Maj. opn, ante, at p. 1154.) While this is an accurate observation, it does little to prove that the Legislature countenanced the use of this authority to directly regulate timber operations. Neither TPZ designations themselves, nor any other reference to zoning within the TPA, suggests that the lawmakers who enacted that *1172statute and the pertinent amendments to the FPA considered it acceptable for counties to use their zoning powers in this specific manner. Only section 4516.5, subdivision (d) speaks to this subject, and its plain language establishes that the Legislature has taken this authority away from counties.

Another part of the TPA relied upon by the majority, Government Code section 51115, provides that “[pjarcels zoned as timberland production shall be zoned so as to restrict their use to growing and harvesting timber and to compatible uses. The growing and harvesting of timber on those parcels shall be regulated solely pursuant to state statutes and regulations.” This language, the majority states, expresses an unambiguous legislative intent to preclude local regulation of timber operations. (Maj. opn., ante, at p. 1155.) I agree, and observe that the sunset provision enacted in 1982 as Public Resources Code section 4516.5, subdivision (e), contained similar language, suggesting that the Legislature intended with section 4516.5 as well to prevent counties from regulating how or where timber operations may occur.

According to the majority, “[o]ne implication of [the language within section 51115], of course, is that the growing and harvesting of timber on non-TPZ parcels need not be regulated solely pursuant to state statutes and regulations.” (Maj. opn., ante, at p. 1155.) This carefully couched phrasing implies, correctly, that alternative implications also exist. The Legislature added the second sentence to Government Code section 51115 in the same stroke as it enacted section 4516.5. (See Stats. 1982, ch. 1561, §§ 1, 3, pp. 6164-6165.) In so doing, the Legislature may have intended to reaffirm, within the TPA, the principles endorsed by section 4516.5, subdivision (d). While this may have been unnecessary, the majority’s reading of section 4516.5 creates surplusage of its own. If, as the majority concludes, section 4516.5 does not disturb local zoning authority, there would have been no need for the Legislature to specify, as it has, that timber harvesting conducted for fire-prevention purposes still must comply with local zoning ordinances. (§ 4584, subd. (j)(4).)8

*1173The majority also claims that it would be “absurd” to allow timber harvesting near residential areas, and that the Court of Appeal’s analysis would compel such a result. (Maj. opn., ante, at p. 1156.) This invocation of the absurdity doctrine is ill considered. Regardless of whether section 4516.5, subdivision (d) prohibits other forms of local control over timber operations, counties still may declare certain timber operations to be nuisances (§ 4514, subd. (a)); propose to the Board of Forestry regulations concerning timber operations, with the Board of Forestry being required to adopt these proposals if they comport with the FPA (§4516.5, subds. (a), (b));9 and regulate harvesting on plots of less than three acres that are not given a TPZ zoning designation (§ 4516.5, subd. (f)). Also, the Department of Forestry regulates timber harvesting through its review and approval of the timber harvesting plans required for virtually all commercial logging. (See §§ 4581-4583.) The FPA allows Santa Cruz County to recommend that the Board of Forestry adopt additional rules and regulations regarding the content of these plans. (§ 4516.8.) So the real question is much more narrow than the majority suggests: whether it would be “absurd” to deny localities the right to forbid or limit timber operations, other than those constituting a nuisance, on parcels of more than three acres that are located near residential areas, where the Board of Forestry has declined to enact sufficient prophylactic rules and the pertinent timber harvesting plan has not addressed residents’ concerns. The Legislature already has answered this question in the negative, for as all parties agree, it already has precluded local regulation of timber harvesting on all parcels zoned TPZ, regardless of their location. (Gov. Code, § 51115.) Apparently the Legislature is of the view that the Board of Forestry and the approval process for timber harvesting plans will provide sufficient safeguards in such cases.10

Finally, the majority claims to find support for its interpretation of section 4516.5, subdivision (d) in the Legislature’s perceived acquiescence in the holding in Big Creek I, supra, 31 Cal.App.4th 418. (Maj. opn., ante, at pp. 1156-1157.) Some perspective is in order here. We granted review to settle a dispute between two—and only two—published decisions by the Courts of Appeal. Big Creek I was the earlier decided case, but under the circumstances I am aware of no authority—and the majority cites to none— holding that we must defer to the initial panel’s conclusions simply because *1174they were the first to publish their views. Were legislative acquiescence so easily discerned and so potent a consideration, we would never disapprove of the earlier of two conflicting decisions. Such a rule would make our jobs inestimably easier but, easily, less estimable. Yet we do uphold the more recent decision in such situations, time and again. (See, e.g., People v. Leal (2004) 33 Cal.4th 999, 1003, 1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071]; Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715, 724, fn. 4 [3 Cal.Rptr.3d 623, 74 P.3d 726]; People v. Adair (2003) 29 Cal.4th 895, 902, 908, fn. 6 [129 Cal.Rptr.2d 799, 62 P.3d 45].) Whatever the merits of legislative acquiescence as an interpretive tool, it has virtually no bearing on the issue before us.

The majority also adopts a mistaken understanding of the doctrine of legislative acquiescence. The majority surmises legislative acquiescence in Big Creek I, supra, 31 Cal.App.4th 418, because the Legislature has amended the FPA numerous times since that decision, without revisiting section 4516.5. (Maj. opn., ante, at p. 1156.) But the acquiescence doctrine requires more than merely that the Legislature amended a statute at some point after a particular provision has been judicially construed. For the doctrine to apply in full measure, the general subject that had been interpreted by the courts must come before the Legislature in connection with a subsequent amendment. (Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 506 [66 Cal.Rptr.2d 304, 940 P.2d 891] (Ventura County).) Here, the parties have not brought to our attention any indication that the subject of state preemption of local authority over timber operations has come before the Legislature in connection with any amendment to the FPA over the past decade. Section 4516.5 itself was last amended in 1984, more than 10 years before Big Creek I was decided. (Stats. 1984, ch. 1446, § 1, pp. 5059-5060.) The amendments to various other sections of the FPA that the majority relies upon fail to establish that the Legislature acquiesced in the interpretation of section 4516.5, subdivision (d) advanced in Big Creek I. (See Ventura County, supra, 16 Cal.4th at p. 506.)

Ventura County, supra, 16 Cal.4th 483, squarely addresses the acquiescence issue before us. There we were concerned with the proper interpretation of the County Employees Retirement Law of 1937 (Gov. Code., § 31450 et seq.). A Court of Appeal decision more than 10 years before Ventura County had interpreted portions of the law pertaining to the computation of pensions. (See Ventura County, supra, 16 Cal.4th at pp. 490-492.) In the intervening years, the Legislature amended various provisions of the law numerous times, without disturbing the interpretation advanced by the Court of Appeal. (Id. at p. 505.)

*1175The foregoing facts, it was contended, generated an inference of legislative acquiescence in the interpretation advanced by the earlier court. (Ventura County, supra, 16 Cal.4th at pp. 505-506.) We disagreed, observing that “[i]t is not clear, however, that the general subject of county employee pensions was before the Legislature when any of the amendments to which the county refers was enacted. Instead the amendments appear to address discrete aspects of the law or to have a general but nonsubstantive effect, such as gender-neutral wording. The county identifies none which suggests that the subject of pension computation generally was before the Legislature when one or more of the amendments was enacted.” (Id. at p. 506.) Similarly here, while the Legislature has amended distinct provisions of the FPA many times in the decade since Big Creek I was decided, no indication appears that the Legislature considered the preemption of local regulation of timber operations in connection with any of these amendments. The majority’s reliance on legislative acquiescence under these circumstances is impossible to reconcile with our reasoning in Ventura County.

Furthermore, even assuming that the Legislature has accepted the result reached by Big Creek I, supra, 31 Cal.App.4th 418, the question remains whether the Legislature has endorsed a broad application of the reasoning in Big Creek I similar to that embraced by the majority here. Big Creek I dealt with a county ordinance that prohibited logging within 1,000 feet of a legal dwelling. (Id., at p. 422.) The Big Creek I court found the ordinance valid because it regulated where logging was conducted rather than how it was performed. (Id., at pp. 424-425.) I am unconvinced that the Legislature’s failure to revisit section 4516.5, subdivision (d) in the decade since implies that it would approve of every ordinance cast as a “where” rather than a “how” regulation, even if in substance the ordinance seems to control the “where” only as a means of getting to the “how.”

Santa Cruz’s helicopter ordinance seems a case in point. The County enacted the ordinance only after the Board of Forestry declined to enact a proposed regulation that would have limited the use of helicopters in timber harvesting. The ordinance regulates where timber companies may locate their helicopter staging, loading, and service areas. By controlling where helicopters may be used for timber operations, the ordinance effectively regulates how logging will be performed within county limits. By upholding this helicopter ordinance, in particular, the majority effectively concedes that the purported distinction between ordinances that regulate how timber operations are conducted and those that regulate where they occur is wholly illusory, and that with a drafting sleight-of-hand virtually any local limitation upon timber operations will evade the proscription of county regulation set forth in section 4516.5, subdivision (d).

*1176It might be the case that the County can defend its helicopter ordinance under a nuisance theory. The parties have not briefed this issue, and I would not decide it. But otherwise, I believe that the County’s zoning and helicopter resolutions and ordinances violate the letter and spirit of section 4516.5, subdivision (d). Therefore, I respectfully dissent.

Kennard, J. and Baxter, J., concurred.

The petition of plaintiffs and appellants for a rehearing was denied August 30, 2006, and the opinion was modified to read as printed above. Kennard, J., Baxter, J„ and Moreno, J., were of the opinion that the petition should be granted.

All subsequent statutory references are to the Public Resources Code except as otherwise noted.

The FPA also includes a savings clause, which clarifies that the law does not affect the authority of local governments to declare, prohibit, and abate nuisances. (§ 4514, subd. (a).) *1165Local regulations concerning certain timber operations covering less than three acres are also exempted from the preemption provision. (§ 4516.5, subd. (f).)

The sunset period having expired, the Legislature amended section 4516.5 in 1984 to remove the sunset provision. (Stats. 1984, ch. 1446, § 1, pp. 5059-5060.)

Moreover, the Legislature has shown in other contexts that it knows how to expressly preserve local zoning when it wants to do so. Some other laws that might otherwise have had an effect on local zoning prerogatives expressly save the authority of local entities to regulate zoning. (See, e.g., Bus. & Prof. Code, § 23791 [Alcoholic Beverage Control Act provision disavowing any interference with local zoning authority], Health & Saf. Code, § 18300, subd. (g)(1) [provision in the Mobilehome Parks Act allowing local governments to establish certain zones for mobilehomes].) But the Legislature chose not to add similar language to the FPA.

The majority’s sole response to the sunset provision consists of a footnote (maj. opn., ante, at p. 1156, fn. 12) that asserts that we need not consider the clause at all because it is no longer part of the FPA. But “[i]t is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature’s purpose at the time of the enactment.” (In re Pedro I (1994) 8 Cal.4th 1041, 1048 [36 Cal.Rptr.2d 74, 884 P.2d 1022], italics added.) The sunset provision, which was enacted as part of section 4516.5, affords substantial insight into the Legislature’s intent in amending the FPA to limit local authority over timber operations. That the Legislature later removed the sunset provision from the FPA once the sunset period came to an end does not somehow strip the clause of its usefulness for purposes of discerning the intent of the enacting Legislature. “[LJegislative activity after the passage of the sunset provision casts no light on the Legislature’s intent when it enacted the statute.” (In re Pedro T., supra, 8 Cal.4th at p. 1048.)

In a recent case decided by this court also involving a claim of express state preemption of local land use regulations, Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725 [29 Cal.Rptr.2d 804, 872 P.2d 143], we stated that “[t]he general principles governing state statutory preemption of local land use regulation are well settled.” (Id. at p. 747.) Yet our ensuing discussion of these “well settled” principles made no mention of any presumption against preemption. (Id. at pp. 747-748.)

The predecessor statute, the Z’berg-Warren-Keene-Collier Forest Taxation Reform Act, also substituted a yield tax on the value of harvested timber for the preexisting ad valorem tax on standing timber, thereby providing a tax incentive that discourages premature harvesting and the conversion of timberland to other uses. (Stats. 1976, ch. 176, § 2, pp. 293-294; see Rev. & Tax. Code, § 38101 et seq.)

Also contrary to the majority’s assertions, the interpretation of section 4516.5, subdivision (d) advanced by plaintiffs and accepted by the Court of Appeal does not render the statutory definition of “timberland” partly surplusage. Under the FPA, “ ‘timberland’ ” means “land . . . which is available for, and capable of, growing a crop of trees of any commercial species used to produce lumber and other forest products.” (§4526.) Considering this language, the majority states, ‘The phrase ‘available for’ would be superfluous if the definition were read to include any land that is capable of growing qualified trees, but that is what plaintiffs implicitly urge . . . .” (Maj. opn., ante, at p. 1155.) Plaintiffs urge no such thing. All parties recognize that, section 4516.5 or no, the state retains its authority to regulate timber operations. By operation of state regulations, land may be “capable” of timber harvesting but not “available” for these operations. This being the case, nothing within the interpretation of section 4516.5, subdivision (d) commended by plaintiffs renders the definition of “timberland” within section 4526 surplusage, in whole or in part.

The procedure for submitting proposed rules to the Board of Forestry is no empty vessel; the Board of Forestry has in fact enacted more than 20 regulations proposed by Santa Cruz County, including rules relating to helicopter yarding. (Cal. Code Regs., tit. 14, §§ 926-926.25 [Santa Cruz County-specific logging rules].)

Furthermore, by preempting only local regulations pertaining to “timber operations,” a defined term under the FPA (see § 4527), the Legislature assumed that counties could “continue to regulate timber operations for aesthetic purposes (e.g., tree trimming ordinances) to require restocking of harvested timber, use of county roads, etc.” (Conf. Com., Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) p. 1.)