Landowner refusal: the two artifacts Exception 2 requires, and its limits

GO 95 Rule 35 Exception 2 lifts Rule 35's requirements where a company made a good faith effort to obtain permission and permission was refused or unobtainable. The effort must be current documentation of at least an attempted personal contact and a written communication, including proof of mailing or delivery. It reaches nothing outside Rule 35.

The letter went out on March 4, 2024. Certified, return receipt requested, to the owner of record on a Nevada County parcel where a 12 kV tap crosses the back corner. It came back unclaimed on March 22. The planner logged "owner refused" against the span, closed the work order and moved on.

Two years later somebody asks what makes that span conforming, and the file answers with a returned envelope. The envelope is real evidence, and it proves something other than what the entry says it proves: nobody refused anything, because nobody answered.

That gap between what a refusal file contains and what it is claimed to establish is most of what goes wrong here. The rule is four sentences long and it is unusually specific about evidence.

Exception 2, in the words that are actually in it

Rule 35 carries four exceptions. The second one is the refusal exception, and it reads:

(2) Rule 35 requirements do not apply where the supply or communication company has made a "good faith" effort to obtain permission to trim or remove vegetation but permission was refused or unobtainable. A "good faith" effort shall consist of current documentation of a minimum of an attempted personal contact and a written communication, including documentation of mailing or delivery. The written communication may include a statement that the company may seek to recover any costs and liabilities incurred by the company due to its inability to trim or remove vegetation. However, this does not preclude other action or actions from demonstrating "good faith". If permission to trim or remove vegetation is unobtainable and requirements of exception 2 are met, the company is not compelled to comply with the requirements of exception 1.

The core of that has been in place since Decision 97-10-056 on October 22, 1997, which is the same decision that added Exception 4 for mature trees. Two changes since are worth knowing. Decision 12-01-032, January 12, 2012, replaced "the utility" with "the supply or communication company" throughout, which aligns the exception with Rule 35's own reach over communication facilities. The same decision added the cost recovery sentence, which had no predecessor in the 1997 or the 2005 text.

That sentence is permissive twice over. The written communication "may include" the statement, so a letter without it still satisfies the exception, and the statement itself says only that the company "may seek to recover" costs and liabilities. It creates no entitlement. What it does is put a specific consequence in front of the owner in writing on a dated document, which is worth something later and is worth nothing to Exception 2 itself.

Refused and unobtainable are two different files

The exception names two end states and gives them one evidence standard. Permission was refused, meaning somebody with authority said no. Or permission was unobtainable, meaning the effort was made and no usable answer came back.

The distinction is not decorative, because the second paragraph of the exception is written for only one of them. "If permission to trim or remove vegetation is unobtainable and requirements of exception 2 are met, the company is not compelled to comply with the requirements of exception 1." Exception 1 is the impracticability relief, which requires the conductor to be separated from the tree by suitable materials or devices.

On the face of the text, a company holding a documented refusal rather than a documented failure to obtain has not been given that release, and nothing in the rule says the two branches are interchangeable. Whether the Commission would read it that way has not been tested. Writing the file correctly costs nothing and removes the question.

The Nevada County entry fails on exactly this. Unclaimed certified mail is evidence of an attempt at delivery and evidence of an end state, and the end state it evidences is unobtainable. Filed as "refused," the entry disagrees with its own exhibit, and the disagreement is visible to anybody who turns the envelope over. An entry that says refused should be able to name who refused, when, and by what means the refusal was communicated.

The two artifacts, and what each one has to prove

"A minimum of an attempted personal contact and a written communication, including documentation of mailing or delivery." Two items, and they are asked to prove different things.

The attempted personal contact. The word doing the work is "attempted." A door knock at a house where nobody answers is a completed artifact under this rule, provided the record captures the attempt: who went, the date, the time, what was found, and what was left behind.

A door hanger photographed in place on the door is an attempted personal contact. A field note reading "no contact" is not one, because it records an outcome and no attempt. Nothing in the rule requires the contact to succeed, and nothing in the rule accepts an attempt that was not written down.

The written communication. The proof named is "documentation of mailing or delivery," not documentation of receipt. USPS Certified Mail with a tracking record satisfies it whether or not the green card comes back. A signed return receipt is more than the rule asks for. An emailed letter with a retained send record and a delivery log satisfies it on its terms; an email with neither does not, because the documentation half of the phrase is missing.

"A minimum of." Two is the floor. The closing sentence, "this does not preclude other action or actions from demonstrating good faith," opens the ceiling. Phone logs, a second mailing, a scheduled meeting the owner did not attend, a certified letter to a property manager: all admissible, none sufficient on their own to replace either of the two named items.

On the Nevada County parcel the file holds one artifact. It becomes two the moment somebody adds a dated visit note naming the crew lead who went, the time, the fact that nobody answered at the residence, and the door hanger left with the office number on it. That note is a fifteen minute job in 2024 and an impossible one in 2026.

Current is the only word in the exception with a clock in it

The rule requires "current documentation" and never says what current means. No interval appears in Rule 35. None appears in Rule 18. None appears anywhere in Title 14 Article 4, which imposes no documentation duty on clearance work at all. The word is doing real work with nothing behind it, which is the same structural gap that runs through the notice condition in PRC 4295.5.

Two things supply a scale in the absence of a rule. The first is the span's own maintenance cycle: if the company's program returns to that circuit every year, an effort made two cycles ago is documentation of a conversation that has not been had since. The second is the Commission's own sense of how long a vegetation condition may reasonably sit, which is visible in the GO 95 Rule 18A correction intervals for a Level 2 nonconformance.

Six months for a fire risk in Tier 3 of the High Fire-Threat District, 12 months in Tier 2, 59 months for everything else. A refusal file from 2019 sitting against a 2026 Tier 2 span is older than every one of those numbers by a wide margin, and the company defending it has no rule text to argue from.

The workable practice follows from that: the good faith effort is re-performed on the span's cycle, and each cycle produces its own dated pair of artifacts rather than a reference back to the last one. That is also the only structure that survives the four events in the next section, because each of them is a change the old file could not have known about.

Who has to refuse before a refusal counts

Exception 2 says "permission" and never says whose. Three California texts touching the same act name three different people, and they are not the same person on every parcel.

Text	The person named
GO 95 Rule 35, Exception 2	"permission," from nobody in particular
PRC 4295	"the consent of the owner of the property"
PRC 4295.5(a)	"notice and an opportunity to be heard to the landowner"

Underneath all three sit two sentences of the Civil Code, both enacted in 1872 and both still governing. Section 833: "Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another." Section 834: "Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common."

Trunk position decides ownership, and canopy position does not. So a valley oak whose trunk straddles the fence between two parcels, with its entire crown over the eastern one and the conductor above that crown, belongs in common to both owners under Section 834. The clearance work is all on the eastern side. The permission is owed to two people, and a file holding one refusal has documented half a good faith effort on a tree it has correctly identified and incorrectly assigned.

Three entries close that out. The owner of record with the date the record was pulled, because a refusal is a fact about a person and the person changes. The tree located by trunk position rather than by the position of the limbs being cut. And where the person who answered the door was a tenant, a caretaker or a property manager, the record saying so and saying what authority they claimed, because a refusal from somebody who cannot give permission is not a refusal.

What the exception switches off, and what it leaves running

The operative words are "Rule 35 requirements do not apply." Not the clearance requirement, the requirements. Read on its face that reaches all three paragraphs of the rule:

• The Table 1 Cases 13 and 14 clearances.

• The paragraph on dead, rotten or diseased overhang.

• The strain and abrasion paragraph for circuits at 750 volts or less.

That is a broad release, and the breadth is in the text.

It is also the outer edge. Everything below survives a perfect Exception 2 file.

Exception 3, which sits directly underneath it. The Commission recognizes that unusual circumstances beyond the utility's control may result in nonconformance, and then reserves the power to direct prompt remedial action "whether or not the nonconformance gives rise to penalties or is alleged to fall within permitted exceptions or phase-in requirements." Exception 2 is a permitted exception. Exception 3 reaches over it by name. A documented refusal is a defense against a citation and it is not an answer to a Commission direction.

GO 95 Rule 18A. The auditable maintenance program, the three priority levels and the record standard live in Rule 18, not Rule 35. Rule 18A(1)(b) requires that the company's records show the nature of the work, the date and the identity of persons performing it, preserved ten years and produced to Commission staff on 30 days notice. Nothing in Exception 2 suspends any of that, and what the rest of that record holds is its own subject.

PRC 4292 and PRC 4293. Different code, different enforcing body, different relief. The Public Resources Code answer to a refusal is PRC 4295, which asks whether the person had the legal right to maintain the clearing and whether the owner consented, and does not ask what effort was made.

Neither rule discharges the other, and a violation of PRC 4293 is a misdemeanor under PRC 4021 where the omission was willful or negligent. On the Nevada County parcel, which is brush covered land inside a State Responsibility Area, both obligations are live during the declared fire season and Exception 2 answers only one of them.

NERC FAC-003. Above 200 kV the constraint is not a defense at all. R5 requires corrective action when a constraint may lead to an encroachment into the MVCD before the next annual work plan, and the acceptable evidence is documentation of increased monitoring, de-rating or de-energization, not documentation of the refusal.

The party who gets cited. Rule 35's duty attaches to the facility rather than to the parcel, and Public Utilities Code sections 2107 and 2108 run against the company. The landowner is not in the Commission's jurisdiction and never becomes the respondent.

Two shelters that are not Exception 2

Both are frequently claimed in place of it, and both answer different facts.

A Rule 18A(2)(b) extension. The rule names the circumstances that carry one:

Correction times "may be extended under reasonable circumstances, such as: Third party refusal; Customer issue; No access; Permits required; System emergencies (e.g. fires, severe weather conditions)."

Third party refusal is the first item on that list, and an extension is a different animal from an exception. An extension presumes the nonconformance exists and moves its due date. Exception 2 says the requirement did not apply. The two produce different entries: an extension needs a stated basis, an author and a new date, while the exception needs the two artifacts. Extending a clock without recording which circumstance carried it leaves an entry indistinguishable from a missed date.

Rule 12.6, Third Party Nonconformance. Added January 13, 2006 by Decision 05-01-030, it reads:

When a third party that is not subject to the requirements of this Order causes a condition on or near a utility facility that does not conform with this Order, the utility shall be allowed reasonable time to address the condition by pursuing appropriate corrective action and/or notification procedures. While addressing this condition, the utility is in conformance with the Order.

That last sentence is stronger than anything in Exception 2, and the price of it is in the first sentence. The trigger is causation: a third party who "causes a condition." An owner who plants a redwood under a 12 kV phase, or who builds a structure that puts a conductor out of clearance, has caused a condition and Rule 12.6 fits.

An owner who declines to let a crew onto the parcel has caused nothing; the tree grew on its own. The rule's own note declines to put a number on "reasonable time" and lists the factors instead, among them the safety implications of the condition and discussions with the third party.

The step CAL FIRE expects and the Commission does not require

CAL FIRE's California Power Line Fire Prevention Field Guide, 2021 edition, states an expectation at page 22 that appears in no rule:

PRC 4295 recognizes private property rights by not requiring trespass if that is the only way in which clearance requirements can be maintained. It is not, however, intended as a loophole. Utilities are expected to make a reasonable effort to secure permission to undertake clearances, and if unsuccessful, they are expected to report their access problems to the responsible fire protection agency. The fire protection agency can then attempt to persuade the property owner to allow clearing.

Nothing in Rule 35, Rule 18 or Article 4 of Title 14 asks for that report. The guide is not itself a regulation except at the pages 14 CCR 1257(b) incorporates by reference for hazard tree identification, and page 22 is not among them. So the report is an expectation stated in print by the agency that will send an inspector, and not a requirement.

The practical consequence is that an inspector arriving on a contested parcel is working from that paragraph. The utility's answer either includes a dated report to the responsible fire protection agency or it does not, and the file is where the difference shows. The addressee is a variable rather than a constant:

• The CAL FIRE Unit on Unit-served State Responsibility Area ground.

• The county fire department in a contract county.

• The city or district agency on Local Responsibility Area land.

Exactly which of those governs a given parcel is settled upstream of this question.

The traffic runs the other way too. The guide directs that fire agency findings be recorded, and that CAL FIRE uses form LE-38a, the California Fire Safety Inspection Report. Of that report, "a copy should be sent or given to the electric utility owning the infrastructure inspected."

And the reports are to be "specific enough for the utility to act on their findings and for the courts to relate them to complaints or other legal actions in the event such actions are filed." An LE-38a naming a span the utility has a refusal file on is the moment the two records have to agree, and a two line memo naming the parcel, the span, the tree and the date of each contact attempt is what makes them agree.

Where a refusal stops answering for a span

A refusal is a fact about one person, one parcel, one scope of work and one date. Change any of those four and the file is answering a question nobody asked.

The person changed. A recorded deed transfers the land and, under Civil Code 833, the trees on it. The new owner has refused nothing. The transfer is a dated public record, which makes this the easiest of the four to catch and the one most often missed, because nothing in a work management system watches the assessor's roll.

The scope changed. Exception 2 covers "permission to trim or remove vegetation," and those are two requests. A refusal to allow removal of a 36-inch coast live oak is not a refusal to allow a four foot prune on the same tree. A program that asked for removal and recorded a bare refusal has not established that the smaller request would have been declined. The file has to say what was asked for, in the words used.

The condition changed. Rule 35's second paragraph begins on actual knowledge, obtained through normal operating practices or through notification to the company, that dead, rotten or diseased material overhangs or leans toward a span. A refusal collected against a clearance request in March predates that knowledge and does not answer it, and whether the tree qualifies and what authority exists to take it down without waiting are separate questions with separate answers.

The law or the map changed. Since January 1, 2019, PRC 4295.5 has permitted a utility to traverse land regardless of ownership or express permission, after notice and an opportunity to be heard. Its two authorized purposes are pruning for the clearances Section 4293 sets and abatement of five named tree conditions, and it runs in high fire threat districts and State Responsibility Areas.

It does not amend Rule 35 and it creates no duty, since "may traverse" is not "shall." A refusal file assembled in 2016 was assembled when consent was the only route onto the parcel. But the same file in 2026 on ground where the entry right runs has answered what the company did and left open whether it needed permission at all.

The map moves too: a span can enter Tier 2 or Tier 3 or a parcel can enter the State Responsibility Area on a Board reclassification, and either event puts an old refusal on new ground.

What the record has to name

The refusal file is organized per parcel and per tree, and it is claimed against a span. Both identifiers have to be in it, because the exception is asserted about a conductor and the permission is owed by a landowner, and the identifier is what lets a later reader join the two.

Eleven entries make the claim testable by somebody who was not there.

The assessor's parcel number, and the span or pole identifier the exception is claimed against. The owner of record and the date that record was pulled. Each tree by species, diameter and trunk position, with a note where the trunk straddles a boundary and Civil Code 834 puts a second owner on the request.

What was asked for, stated as a pruning distance or as removal, in the words that were used. Artifact one: who attempted the personal contact, on what date, at what time, what was found and what was left.

Artifact two: the written communication itself, its date, its delivery method, the mailing or delivery record, and whether it carried the cost recovery statement. The end state, refused or unobtainable, matched to the exhibits rather than to habit. Any additional actions offered as good faith, since the rule invites them.

The report to the responsible fire protection agency, by agency name and date, where one was made. Whether PRC 4295.5 was available on that parcel and what was done about it. And the date the effort will be re-performed, which is the only entry that keeps "current documentation" from being an argument.

Exception 2 is the one place in Rule 35 where conformance is a stack of paper rather than a distance. That makes it the cheapest part of the rule to satisfy and the most expensive part to be caught short on. A clearance can be re-measured on any Tuesday. A contact attempt made in March 2024 cannot be re-created in 2026, and the returned envelope on its own proves only that a letter went out.

Further reading

• CPUC GO 95 Rule 35: the vegetation clearance rule, explained: The rule the exception is an exception to, paragraph by paragraph.

• PRC 4295.5: when a utility may traverse land, and what it does not excuse: The 2019 right of entry that changed what an unanswered refusal leaves open.

• Documenting clearance work so it survives an audit: Where the refusal file sits inside the rest of the record.

Frequently asked questions

Does a property owner's refusal excuse a utility from GO 95 Rule 35?

Only where Exception 2 is satisfied. The exception says Rule 35 requirements do not apply where the supply or communication company has made a good faith effort to obtain permission but permission was refused or unobtainable. A good faith effort shall consist of current documentation of a minimum of an attempted personal contact and a written communication, including documentation of mailing or delivery. Without both artifacts the refusal is an uncorrected nonconformance.

What counts as a good faith effort under GO 95 Rule 35 Exception 2?

Two documented artifacts at minimum. An attempted personal contact, where the attempt itself is what has to be recorded, and a written communication whose mailing or delivery is documented. Proof runs to sending, not to receipt. The rule adds that this does not preclude other actions from demonstrating good faith, so the file may hold more and may not hold less.

Does Exception 2 also excuse PRC 4293 clearance on the same span?

No. Exception 2 is an exception to Rule 35 and to nothing else. On State Responsibility Area land the relief from PRC 4292 and 4293 is PRC 4295, which turns on the legal right to maintain the clearing and on the owner's consent rather than on the effort made. The two are usually answered by the same file, but they are different questions.

How long does a documented refusal stay good?

The rule requires current documentation and never defines current. No interval appears in Rule 35, in Rule 18, or in Title 14. In practice the effort is re-performed on the span's own maintenance cycle, and it is retired early by a change in the owner of record, in the work being asked for, or in the condition of the tree.