In a partially published opinion, the Second District reversed the ruling of the Los Angeles County Superior Court, and affirmed the adequacy of the EIR certified by the California Department of Fish and Wildlife (CDFW, formerly the California Deptartment of Fish and Game) in 2010, as well as related permits issued to development company Newhall Land and Farming (Newhall Land). CDFW relied on the EIR to evaluate the potential environmental effects of issuing incidental take permits and a streambed alteration agreement to Newhall Land for an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003.The area studied in the EIR is located in northwestern Los Angeles County, between the City of Santa Clarita and the Los Angeles/Ventura County line, in a portion of the Santa Clara River Valley. The appellate court took up six issues, and published its opinion on five of the issues, as summarized below.
Mitigation Measures Designed to Conserve a Fully Protected Species do not Constitute an Unlawful Take of the Species.
The unarmored threespine stickleback , a fully protected fish species under California law, is present in the project reach of the Santa Clara River. The EIR contained mitigation measures to exclude stickleback from any construction areas in the River, and to relocate any stranded fish. Petitioners argued that project activities, including the relocation measures, constituted an unlawful “take” of stickleback under state law. The court concluded there was “substantial evidence no death will occur given the extraordinary measures taken by [CDFW] to ensure the sticklebacks’ safety” in the form of extensive mitigation and the expertise of one of the leading authorities on stickleback preservation. The court conducted a thorough review of pertinent sections of the Fish and Game Code, along with their legislative histories, to conclude that CDFW’s imposition of mitigation measures for relocation are consistent with CDFW’s conservation mandates found in Fish and Game Code Section 2055 for fully protected species and Fish and Game Code Section 2061,which allows live trapping and transplantation for conservation purposes. Therefore, the court concluded the relocation measures did not constitute unlawful take or possession of stickleback.
Petitioners Failed to Exhaust Administrative Remedies Relating to its Cultural Resource Challenges and, in any event, Substantial Evidence Supports the Analysis in the EIR.
Petitioners alleged that the project area is the ancestral homes of the Tataviam and Chumash peoples and that it is rich with historical and cultural resources. Petitioners argued that the cultural resource impacts analysis and the mitigation measures proposed to address those impacts failed to comply with the requirements of CEQA. The Court held that Petitioners forfeited the cultural resource arguments. =No commenter raised concerns regarding the adequacy of the cultural resource analysis during the public comment period. As a result, the Court held Petitioners failed to exhaust administrative remedies and CDFW had no obligation to respond to untimely comments.
Moreover, the Court found the cultural resource analysis was supported by substantial evidence. The cultural resource analysis was prepared by CDFW based on evidence prepared by a cultural resource consultant. The consultant conducted extensive archival research, walked the project area, and undertook excavations in areas known to have the potential to contain cultural resources. Although human remains were found near the project area, the Court held such offsite discoveries did not compel CDFW to dig random test pits on site to corroborate its expert’s conclusions or to undertake any further surveys. Finally, the Court held cultural resource mitigation measures set forth in the EIR were adequate and fully complied with CEQA Guidelines section 15126.4(b)(3)(A).
Substantial Evidence Supports CDFW’s Determinations Regarding the Infeasibility of Alternatives
Petitioners argued the range of alternatives included in the EIR was not reasonable and CDFW’s determination regarding the feasibility of alternatives was not supported by substantial evidence. The Court disagreed stating, “the assessment of alternatives in an environmental impact report must proceed in a fashion consistent with a specific plan.” In consideration of the objectives of the specific plan, the range of alternatives was adequate and substantial evidence supported CDFW’s determination regarding the feasibility of the project alternatives.
Substantial Evidence Supports CDFW’s Conclusions Regarding Steelhead Smolt
Petitioners claimed the EIR failed to analyze sub-lethal impacts of the project’s dissolved copper discharges on steelhead smolt downstream of the project area. The court concluded Petitioners’ arguments on this point were again forfeited because they were not raised during the public comment period. The court went on to conclude that, in any event, substantial evidence supported CDFW’s determination that the project’s impacts on steelhead smolt would be less than significant.
Substantial Evidence Supported CDFWs Conclusions Regarding Spineflower
Petitioners also alleged flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location. CDFW issued an incidental take permit for spineflower, allowing take of 4.85 acres of occupied spineflower habitat, but requiring creation of 167.56 acres of preserves plus an additional 42.9 acres of expansion areas, millions of dollars of funding for those preserves, a habitat characterization study, and a host of other protective measures including measures to control the invasive Argentine ant, as well as adaptive management programs The court summarized the extensive evidence in the record documenting years of scientific collaboration by a bevy of scientists who described spineflower habitat requirements, tracked existing occurrences, and evaluated management tools to preserve and expand areas of spineflower growth. The court concluded this extensive record constituted substantial evidence to support CDFW’s scientific strategies, its conclusions in the EIR, and its findings under the California Endangered Species Act. The court further concluded Petitioners had improperly relied on views expressed by one CDFW scientist concerning early versions of the spineflower conservation plans, and the substantial evidence standard of review did not allow for reweighing of conflicting views. The court also found that CDFW’s comprehensive monitoring plan did not defer environmental decisions, but rather, represented “sound ecological management.”
In an Unpublished Portion of the Decision, the Court Upheld the Adequacy of Greenhouse Gas Analysis.
CDFW determined that the significance threshold for greenhouse gas emissions should be premised on the reduction target established under the California Global Warming Solutions Act (AB 32). Therefore, the EIR stated greenhouse gas emissions would be significant if the project would impede compliance with achieving a reduction in statewide greenhouse gas emissions to 1990 levels by 2020. The Court concluded the threshold was adequate and stated that CDFW was vested with the discretion to select a threshold. The Court also concluded substantial evidence supports the greenhouse gas emission baseline used by CDFW because the EIR considered the greenhouse gas emissions currently emanating from the project site (i.e. the existing environmental setting).
Citing CEQA Guidelines section 15064.4(b)(1)-(3), the court stated that a greenhouse gas analysis should consider the projects impacts as compared to the existing environmental setting, evaluate whether project emissions exceeds the applicable threshold, and consider whether the project complies with regulatory requirements imposed by other government agencies to mitigate greenhouse gas impacts. Because the greenhouse gas analysis complied with these requirements and was supported by substantial evidence, the Court found the analysis complied fully with CEQA.
The court’s opinion emphasizes application of the substantial evidence standard of review. Under this standard, the court was required to defer to the technical, scientific expertise of the agency as evidenced in the thorough record of its review of the project. The opinion notes that “virtually every contention” posited by petitioners contravened this applicable standard, and while the trial court followed petitioners’ lead, application of the correct standard required reversal.