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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from March, 2016


NINTH CIRCUIT UPHOLDS 187,000 SQUARE-MILE CRITICAL HABITAT DESIGNATION FOR POLAR BEARS IN ALASKA

Wednesday, March 23rd, 2016

In Alaska Oil & Gas Association v. Jewell, 2016 U.S. App. LEXIS 3624, the Ninth Circuit reversed the district court and upheld the Fish and Wildlife Service’s (“FWS”) final rule designating 187,000 square-miles as critical habitat to protect threatened polar bears as required by the Endangered Species Act (“ESA”).

Under the ESA, FWS is required to designate “critical habitat” for threatened species. Critical habitat is defined as areas that contain physical and biological features—also known as “primary constituent elements” or PCEs—that are essential to the conservation of the species. The benefits of protection must then be weighed against economic, national security, and other relevant impacts before a designation is made. Of the 187,000 square-miles FWS designated as habitat, 95.9% is comprised of sea ice and the remaining land consists of terrestrial habitat on Alaska’s northern coast and barrier islands. While polar bears spend the majority of their lives on sea ice, FWS determined that terrestrial land was also essential to polar bear conservation because female polar bears will occasionally come ashore to den and acclimate their cubs. After balancing these conservation concerns with other factors, FWS excluded two Native villages as well as all man-made structures from the designation, but chose to include a one-mile “no disturbance zone” around each barrier island.

Only the terrestrial habitat designation was challenged by the Alaska Oil and Gas Association, the American Petroleum Institute, oil and gas trade associations, the State of Alaska, and numerous Native American groups, who argued that the designation was arbitrary and capricious under the Administrative Procedure Act and violated the ESA. Three environmental groups then intervened on behalf of FWS. The district court granted summary judgment to the plaintiffs on two of their claims and vacated the entire designation.

On the first claim, the district court held that the terrestrial habitat designations were improper because FWS failed to show that polar bears actually denned in these areas. The Ninth Circuit disagreed, holding that there is no such requirement in the ESA. The Ninth Circuit reasoned that imposing a requirement of actual species presence would run counter to the ESA’s goal of species recovery which requires expanding habitat beyond what is currently utilized. In reaching its conclusion that the designations were proper, the Court found that FWS utilized the best available scientific data to justify its designations on the northern coast and barrier island habitats.

On the second claim, the district court held that FWS had provided the State of Alaska with inadequate “written justification” for adopting a final rule that was inconsistent with the State’s recommendations in violation of ESA Section 4(i). The Ninth Circuit followed D.C. Circuit precedent and held that the requirements in Section 4(i) are procedural and courts cannot review the substance of the written response. Therefore, the Ninth Circuit overturned the district court and held that FWS fulfilled its limited statutory duty by sending a written response to the State.

Finally, the Ninth Circuit denied plaintiffs’ cross-appeal, upholding the district court’s ruling on plaintiffs’ remaining claims. The case was remanded and the district court was ordered to enter judgment in favor of FWS.

Key Point:

The Endangered Species Act provides wide discretion to the United States Fish and Wildlife Service in designating critical habitat for endangered or threatened species. Critical habitat designations should be made based on the habitat’s physical and biological features; no evidence of actual presence in the area is required.

FOURTH APPELLATE DISTRICT UPHOLDS MND, FINDS ALLEGED IMPACTS TO COMMUNITY CHARACTER BASED SOLELY ON SOCIAL AND PSYCHOLOGICAL CONCERNS

Friday, March 18th, 2016

In a published opinion, Preserve Poway v. City of Poway, 2016 Cal. App. LEXIS 177, the Fourth Appellate District upheld a mitigated negative declaration (MND) for a project that proposed to close the Stock Farm, a privately-owned horse boarding and training facility, and subdivide the site into twelve one-acre residential lots, a legally permissible use for the property.

The potential loss of the Stock Farm drew the ire of the community, especially members of the Poway Valley Riders Association (PVRA), which operated rodeo and polo grounds across the street from Stock Farm. If the project was approved, members would no longer be able to conveniently keep their horses near the PVRA facility. Because of this, PVRA contended that Poway’s “City in the Country” character would be harmed by the closing of this “long-standing community resource,” which it called “one of the Poway’s finest assets.” Interestingly, PVRA has the acreage to board horses on its property but had declined to do so in the past due to perceived liability issues associated with boarding horses.

After the City Council unanimously approved the MND, project opponents formed Preserve Poway and filed suit alleging that an environmental impact report (EIR) was required under CEQA for numerous reasons. After dismissing most of the arguments due to Preserve Poway’s failure to exhaust, the trial court agreed that an EIR was necessary because there was substantial evidence that the closing of the Stock Farm may have a significant impact on community character.

On appeal, the Fourth District disagreed, finding that there was no evidence that the project violated any land use regulations or would have any significant aesthetic impacts given that there was other similar residential areas nearby. Rather, the community character issue raised here concerned the local youth’s access to horse riding and the additional transportation time it would take to bring horses to the PVRA site. According to the court, these impacts were social and psychological, not environmental. Therefore, whether to approve the project was “a political and policy decision entrusted to Poway’s elected officials” and not “an environmental issue for courts under CEQA.”

Importantly, this case also represents the first published appellate decision to address the Supreme Court’s recent holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. In a brief discussion, the court rejected an argument that the existing horses, trucks, and horse trailers on the road could have a negative impact on the future residents of the project. The court held that this issue was outside the scope of CEQA after the Supreme Court’s decision because it concerned the impact of the existing environmental conditions on a proposed project’s future users or residents.

Finally, the court rejected Preserve Poway’s remaining arguments about the inadequacy of the MND because Preserve Poway had not appealed from the trial court’s judgment, thus forfeiting its right to bring these arguments before the appellate court.

Key Point:

A project’s social and psychological impact on community character need not be analyzed during an environmental review under CEQA. Any issues associated with these impacts are policy issues that should be decided during the political process. While the court here seemed to imply that community character should be discussed only in relation to aesthetic impacts, we note that a land use plan could contain policies on preserving community character and that the environmental review would need to consider whether the project was consistent with those policies.

CEQA STREAMLINING

Friday, March 18th, 2016

CEQA seminar flyer

SIXTH APPELLATE DISTRICT REJECTS CEQA AND PARK ACT CHALLENGES TO SALE OF PUBLIC ACTIVITY CENTER

Wednesday, March 2nd, 2016

In an unpublished opinion, Save Sunnyvale Parks & Schools v. City of Sunnyvale, 2016 Cal. App. Unpub. LEXIS 1146, the Sixth Appellate District affirmed the trial court’s ruling and rejected challenges to the City’s approval of the sale of the Raynor Activity Center (“RAC”) to Stratford Schools, a private school.

The City had previously declared that the RAC was a surplus property and had begun a competitive bidding process for its sale. Negotiations with Stratford resulted in a proposed agreement to sell the property for $14,050,000, with a joint use agreement that gave Stratford priority use of certain areas in the adjacent, City-owned Raynor Park. The proposed sale agreement required the City to conduct an environmental analysis under CEQA as part of the permitting process. Petitioner Save Sunnyvale Parks (“Petitioner”) sought a writ of mandate to compel the City to rescind the sale and joint use agreements, arguing that the City approved the agreements without first complying with CEQA and that the agreements violated the Public Park Preservation Act of 1971 (“Park Act”).

First, the court held the City did not violate the Park Act, which requires that all the funds received by a local government from the sale of park land be used to obtain or provide substitute park land and facilities. The court held that under the “home rule” doctrine, the Park Act did not apply to a charter city like Sunnyvale because the preservation of public parks is not a matter of statewide concern.

Next, the court rejected Petitioner’s claim that the City approved the sale and joint use agreements before conducting CEQA review in violation of the principles articulated in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. The court found that Petitioner’s Save Tara claim was barred because it had not satisfied the “issue exhaustion requirement” of Public Resources Code section 21177(a), which prohibits a legal action from being commenced unless the grounds for noncompliance were presented to the public agency during the administrative process. The court found that the public comments submitted were far too general to satisfy the issue exhaustion requirement, and that the notices or staff reports prepared by the City sufficiently notified the public of the City’s conclusions regarding the timing of CEQA review and the proposed agreements.

Finally, the court rejected Petitioner’s claim that the issue exhaustion requirement impermissibly infringed its rights to petition the government for redress of grievances as guaranteed in California Constitution Article I, § 3. The court held that the right to petition does not excuse compliance with the issue exhaustion requirement and noted that Petitioner was not denied access to the courts in this case––its claims were considered by both the superior and appellate court.