Bill Text: CA AB853 | 2021-2022 | Regular Session | Amended
Bill Title: Mountainous, forest-, brush-, and grass-covered lands: timber operations: clearings: notice: enforcement: limitations periods.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB853 Detail]
Download: California-2021-AB853-Amended.html
|
Amended
IN
Assembly
March 25, 2021 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 853
| Introduced by Assembly Member Stone |
February 17, 2021 |
An act to amend Section 338 of the Code of Civil Procedure, and to amend Sections 4295.5 and 4527 of, to add Section 4612 to, and to repeal Section 4295 of of, the Public Resources Code, relating to resource protection.
LEGISLATIVE COUNSEL'S DIGEST
AB 853, as amended, Stone.
Mountainous, forest-, brush-, and grass-covered lands: clearings. timber operations: clearings: notice: enforcement: limitations periods.
Existing
(1) Existing law requires a person who owns, controls, operates, or maintains an electrical transmission or distribution line upon specified lands to maintain clearances and firebreaks around certain electrical equipment, as provided. Existing law provides that a person is not required to comply with the above provisions relating to the clearing on any land if the person does not have the legal right to maintain that clearing.
This bill would make nonsubstantive changes to
delete the above provision of law that excludes a person, as provided, from having to maintain the clearing. clearing and would make conforming changes.
The Z'berg-Nejedly Forest Practice Act of 1973 (act) prohibits a person from conducting timber operations unless a timber harvesting plan prepared by a registered professional forester has been submitted to the Department of Forestry and Fire Protection. The act defines timber operations for these purposes to mean the cutting or removal, or both, of timber or other solid wood forest products from timberlands for commercial purposes, as provided. The act defines “commercial purposes” to include, among other things, the
cutting or removal of trees that are processed for sale, barter, exchange, or trade, as provided. A violation of the act is a crime.
This bill would also include, as part of the definition of “commercial purposes” any cutting or removal of timber or other solid wood forest products by any person that owns, controls, operates, or maintains any electrical transmission or distribution line upon specified lands, as provided. By expanding the scope of a crime, this bill would impose a state-mandated program.
The bill would require a utility company, before commencing work to maintain clearances and firebreaks around certain electrical equipment, to notify, in writing, the owner of the land upon which the work will be performed no less than 21 days before the commencement of the work, as provided. The bill would require the notice to include specified information, including information regarding the landowner’s right to object to
the work and information regarding the landowner’s options for the disposition of the timber or other solid wood forest products, as provided. The bill would require that a person who violates these provisions be subject to a civil penalty imposed by a court in an amount not to exceed $10,000 for each violation. The bill would authorize a city attorney or county counsel to bring action to enforce these provisions, as provided. The bill would also make conforming changes.
Existing law provides that civil actions can only be commenced within prescribed periods, based on the nature of the action, including a 3-year limitations period for specified violations of the act.
This bill would provide that an action commenced by a city attorney or a county counsel to enforce the provisions described above relating to notice before a utility company commences work to maintain clearances and firebreaks around certain electrical
equipment is subject to a 3-year limitations period, as provided.
(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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 338 of the Code of Civil Procedure is amended to read:338.
Within three years:(a) An action upon a liability created by statute, other than a penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) (1) An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2) The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the
aggrieved party, his or her
the aggrieved party’s agent, or the law enforcement agency that originally investigated the theft.
(3) (A) Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or his or her the claimant’s
agent, of both of the following:
(i) The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii) Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B) This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the
judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C) For purposes of this paragraph:
(i) “Actual discovery,” notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii) “Auctioneer” means an individual who is engaged in, or who by advertising or otherwise holds himself or herself the individual out as being available to engage in, the calling for, the recognition of, and the
acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii) “Dealer” means a person who holds a valid seller’s permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv) “Duress” means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or his or her the owner’s family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which he or she
the person would otherwise not have acquiesced.
(v) “Fine art” has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi) “Museum or gallery” shall include any public or private organization or foundation operating as a museum or gallery.
(4) Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5) A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not
deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e) An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or his or her
the aggrieved party’s agent, of the facts constituting the cause of action upon the bond.
(f) (1) An action against a notary public on his or her the notary public’s bond or in his or her the notary public’s official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or his or her
the aggrieved party’s
agent, of the facts constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or his or her the aggrieved party’s agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary public on his or her the notary public’s
bond or in his or her
the notary public’s official capacity shall be commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i) An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water
quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l) An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts
constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.
(o) An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p) An action commenced under Section 4612 of the Public Resources Code. The cause of action shall be deemed to have accrued from the date of the violation, notwithstanding the date upon which a complaint is received by a city attorney or county counsel.
SEC. 2.
Section 4295 of the Public Resources Code is repealed.A person is not required by Section 4292 or 4293 to maintain any clearing on any land if such person does not have the legal right to maintain such clearing, nor do such sections require any person to enter upon or to damage property which is owned by any other person without the consent of the owner of the property.
SEC. 3.
Section 4295.5 of the Public Resources Code is amended to read:4295.5.
(a) Notwithstanding any other law,(b) Nothing in subdivision (a) shall exempt any person who owns, controls, operates, or maintains any electrical transmission or distribution line from liability for damages for the removal of vegetation that is not covered by any easement granted to him or her the person for the electrical transmission or
distribution line.
SEC. 4.
Section 4527 of the Public Resources Code is amended to read:4527.
(a) (1) “Timber operations” means the cutting or removal, or both, of timber or other solid wood forest products, including Christmas trees, from timberlands for commercial purposes, together with all the incidental work, including, but not limited to, construction and maintenance of roads, fuelbreaks, firebreaks, stream crossings, landings, skid trails, and beds for the falling of trees, fire hazard abatement, and site preparation that involves disturbance of soil or burning of vegetation following timber harvesting activities, but excluding preparatory work such as treemarking, surveying, or roadflagging.(2) “Commercial purposes” includes (A) the cutting or removal of trees that are processed into logs, lumber, or other wood products and
offered for sale, barter, exchange, or trade, or
(B) the cutting or removal of trees or other forest products during the conversion of timberlands to land uses other than the growing of timber that are subject to Section 4621, including, but not limited to, residential or commercial developments, production of other agricultural crops, recreational developments, ski developments, water development projects, and transportation projects. projects, or (C) any cutting or removal of timber or other solid wood forest products by any person that owns, controls, operates, or maintains any electrical transmission or distribution line upon any mountainous land, or forest-covered land, brush-covered land, or grass-covered land, or contractor thereof, as required by Sections 4292 and 4293.
(b) For
purposes of this section, the removal of trees less than 16 inches in diameter at breast height from a firebreak or fuelbreak does not constitute “timber operations” if the removal meets all of the following criteria:
(1) It is located within 500 feet of the boundary of an urban wildland interface community at high risk of wildfire, as defined in pages 751 to 776, inclusive, of Volume 66 of the Federal Register (66 FR 751-02), as that definition may be amended from time to time. For purposes of this paragraph, “urban wildland interface community at high risk of wildfire” means an area having one or more structures for every five acres.
(2) It is part of a community wildfire protection plan approved by the department or part of a department fire plan.
(3) The trees to be removed will not be processed into logs or
lumber, unless the work is being conducted by, or in partnership with, a public agency or a nonprofit organization that has received a grant from the department for vegetation management or fuel reduction, in which case the logs or lumber may be sold.
(4) The work to be conducted is under a firebreak or fuelbreak project that has been subject to a project-based review pursuant to a negative declaration, mitigated negative declaration, or environmental impact report in compliance with the California Environmental Quality Act (Division 13 (commencing with Section 21000)). For projects to be conducted on forested landscapes, as defined in Section 754, the project and the project-based review shall be prepared by or in consultation with a registered professional forester.
(5) The removal of surface and ladder fuels is consistent with former paragraph (9) of subdivision (j) of Section
4584, as that section read on December 31, 2018.
SEC. 5.
Section 4612 is added to the Public Resources Code, immediately following Section 4611, to read:4612.
(a) Before commencing any activity required pursuant to Section 4292 or 4293, a utility company, or any party contracted by a utility company, shall notify, in writing, the owner of the land upon which the work will be performed no less than 21 days before the commencement of the work required by Section 4292 or 4293. The notice shall include all of the following:(1) A list and visual diagram of all trees to be removed or trimmed.
(2) Information regarding a landowner’s right to object to the removal or trimming of tress in accordance with subdivision (b).
(3) Information regarding the landowner’s options for the
handling of any timber or other solid wood forest products in accordance with subdivision (c).
(4) A form upon which the landowner may notify the utility company in writing of their preferences pursuant to subdivisions (b) and (c).
(5) A statement that provides that if a landowner does not inform the utility company of their preferences pursuant to subdivisions (b) and (c), the utility company, or a party contracted by the utility company, may commence work on the date provided in the notice and that any timber or other solid wood forest products that result from the tree removal or trimming will be left on the landowner’s property.
(b) No less than five days before the scheduled work by the utility company, or a party contracted by the utility company, the landowner may notify the utility company, in writing, that
the landowner objects to the utility company’s work plan. A landowner objecting to the utility company’s work plan has 30 days from the date the notice was provided to the utility company to produce their own timber harvest plan developed by a licensed professional forester. The utility company, or a party contracted by the utility company, shall not commence work during the 30-day period.
(c) The notice provided for in subdivision (a) shall provide the landowner with all of the following options for handling any timber or other solid wood forest products that result from the tree removal or trimming:
(1) The utility company shall leave any timber in manufactured log lengths or other solid wood forest products on the landowner’s property.
(2) The landowner requires the utility company to remove, process, and sell any
logs or lumber products generated during the tree removal.
(3) The landowner requires the utility company to remove, process, and sell any logs or lumber products generated during the tree removal and requires the utility company to donate the proceeds of the sale to a land trust based within 100 miles of the landowner’s property.
(d) The landowner shall inform the utility company, in writing, of their preferred option, as described in subdivision (c), for the disposition of timber or other solid wood forest products at the time the work is being performed and before completion of the work.
(e) In addition to any other civil penalty, any person who violates this section shall be subject to a civil penalty imposed by a court in an amount not to exceed ten thousand dollars ($10,000) for each violation.
(f) A violation of this section shall not be subject to Section 4601.
(g) An action to enforce this section may be brought by a city attorney or county counsel upon the complaint of the department or any landowner upon whose property a violation occurred.
SEC. 6.
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.A person is not required by Section 4292 or 4293 to maintain a clearing on land if that person does not have the legal right to maintain that clearing, nor do
Sections 4292 or 4293 require a person to enter upon or to damage property that is owned by another person without the consent of the owner of the property.
