REAL ESTATE & ENVIRONMENTAL LAW a neighbor's mitigated timber cutting remains enforceable

Environmental Law - Katzeff v. Cal. Dept. of Forestry

In this appellate case from Mendocino County written by Judge Rivera, the plaintiff was complaining that his neighbor was cutting down trees that had been set aside from a prior timber harvest plan as a specific windbrake and mitigation in the plan.
The case came as an appeal from a demurrer, so the issue was whether the plaintiff had stated a cause of action. The court said that the Department of Forestry couldn’t arbitrarily jettison a mitigation that had been considered when the larger stand of timber had been cut. The court also said that since the permit to cut the remaining trees was improper, the plaintiff could state a claim for nuisance.

Comment:. Court got the main point. Ending a mitigation to an environmental harm should not be lightly allowed.

On the other hand, I keep looking in vain for courts to narrow the application of “nuisance”. “Nuisance” is a catchall tort with a definition that allows a defendant to be sued if a plaintiff alleges an interference with their use and enjoyment of land such that “an ordinary person would have been reasonably annoyed by defendant’s conduct.” This is an extremely vague and subjective standard that on its face could force a person who has done nothing genuinely harmful to have to prove at trial that a plaintiff’s annoyance is unreasonable by the standards of an ordinary person.