Center for Biological Diversity v. Department of Fish & Wildlife, S217763. (B245131; 224 Cal.App.4th 1105; Los Angeles County Superior Court; BS131347.)

July 16th, 2015

By: Thomas Law Group



Petition for Review Granted

July 9, 2014

Current Status

Fully briefed by the parties as of November 26, 2014.

Amicus briefing complete as of March 16, 2015.

The Court Ordered the Attorney General, or an appropriate state agency to be identified by the Attorney General, to serve and file an amicus curiae brief on or before August 7, 2015.

Court’s Statement of Issues Presented

Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues:

  1. Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
  2. Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report?
  3. May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline?  Center for Biological Diversity (CBD) argues that: (1) CDFW and Army Corps of Engineers’ mitigation measures to protect special status fish, including specifically, a measure permitting the U.S. Fish and Wildlife Service, if necessary during project construction, to move out of immediate harm’s way stranded unarmored three spine stickleback, a stated designated “endangered” and “fully protected” fish, is not prohibited “take” or a prohibited “authorization” under state law; (2) the exhaustion doctrine as set forth in Public Resources Code section 21177 cannot be interpreted to bar CEQA claims based on comments submitted after the comment period on the EIR has ended; and (3) the California Department of Fish and Wildlife’s (CDFW) use of a hypothetical “business as usual’ version of the Newhall Ranch Project as a baseline for determining the significance of the project’s GHG emissions was impermissible under CEQA. CBD seeks a writ directing the CDFW to vacate its certification of the EIR and all related approvals.  Newhall argues that (1) CBD’s interpretation of the Fish and Game Code would prevent the US Fish and Wildlife Service from collecting stranded stickleback and relocating them to another part of the river – this interpretation ignores the Service’s independent federal authority to move the fish and runs afoul of the Fish and Game Code’s conservation management principles; (2) the CDFW’s CEQA obligations to review comments on the EIR should not be extended to match the Corps’ separate obligation under NEPA to accept and respond to public comments on the Final EIS; and (3) the EIR properly quantified and disclosed existing emissions without the project and projected emissions with the project, then exercised its discretion to determine significance by assessing whether project emissions would impede statewide compliance with AB 32, consistent with the methodology used in the 2008 Scoping Plan adopted by the Air Resources Board.  Plaintiffs and Respondents:
  4. Parties/Counsel
  5. CDFW argues that (1) the CDFW’s and Army Corps of Engineers’ (Corps) mitigation measures do not authorize “take” of the unarmored threespine stickleback, a California fish designated as “fully protected” and “endangered” under State law; rather, under the fundamental canons of statutory construction, the words of the Fish and Game Code must be interpreted to allow the CDFW to move stranded stickleback out of harm’s way without authorizing “take” of stickleback, as such interpretation is consistent with the conservation purpose of the statutory scheme; (2) the exhaustion doctrine does not require the CDFW to respond to CBD’s comments submitted long after the 120-day public comment period ended and the public hearing on the project closed; the fact that the Corps accepted comments received during a separate public comment period required under NEPA for the Final EIS did not extend the comment period for State CEQA review; and (3) the CDFW properly relied on guidance from the Air Resources Board to define the methodology for the EIR’s climate change analysis and evaluated the project’s projected GHG emissions impacts by quantifying existing emissions on the site and quantifying the emissions expected to result from the project, and the CDFW’s determination that the impacts are less than significant are supported by substantial evidence in the record and should be accorded great deference.
  6. Summary of the Parties’ Arguments
  • Center for Biological Diversity, Represented by Center for Biological Diversity, UCLA School of Law, Chatten-Brown and Associates, and Chatten-Brown and Carstens
  • Wishtoyo Foundation/Ventura Coastkeeper, Represented by Law Office of Jason A. Weiner, Chatten-Brown and Associates, Chatten-Brown and Carstens, UCLA School of Law, and Center for Biological Diversity
  • Friends of the Santa Clara River, Represented by UCLA School of Law, Chatten-Brown and Carstens, and Center for Biological Diversity
  • Santa Clarita Organization for Planning and the Environment, Represented by, Chatten-Brown and Carstens, UCLA School of Law and Center for Biological Diversity
  • California Native Plant Society, Represented by Chatten-Brown and Carstens, UCLA School of Law and Center for Biological Diversity

Defendant and Appellant:

  • Department of Fish and Wildlife, Represented by Office of the General Counsel of the California Department of Fish and Wildlife and Thomas Law Group

Real Party in Interest:

  • The Newhall Land and Farming Company, Represented by Gatzke Dillon and Balance, Nielsen Merksamer Parrinello Gross & Leoni LLP, Morrison and Foerster, and Downey Brand LLP

Procedural History

The Plaintiff and Respondent conservation groups brought this action to challenge the CDFW’s certification of a proposed development project’s environmental impact report/environmental impact statement (EIR/EIS), approval of a resource management plan, adoption of a conservation plan, and issuance of incidental take permits.  The Los Angeles County Superior Court granted plaintiffs’ petition for writ of mandate.

The Court of Appeal, Second District, reversed and remanded to the trial court, directing judgment be entered in favor of CDFW.  In the published portion of its opinion, the appellate court found that CDFW’s project authorization would not result in prohibited take or possession of Unarmored Threespine stickleback because: (1) there was substantial evidence that the CDFW’s actions would not result in death to the fish; and (2) the statutory scheme permitted the CDFW to approve live trapping and transplantation techniques for purposes of conservation.  Substantial evidence also supported CDFW’s mitigation plan determinations regarding the San Fernando Valley Spineflower, an endangered species under the California Endangered Species Act (CESA).  The court held that since the Spineflower take was incidental to lawful activity, and that the take would not jeopardize the Spineflower’s existence, the CDFW’s issuance of an incidental take permit did not constitute an abuse of discretion.  In an unpublished portion of its opinion, the appellate court endorsed the EIR’s greenhouse gas (GHG) analysis.  CDFW used an AB 32-derived GHG threshold of significance, which stated that the project’s GHG emissions would be significant if the project would impede the achievement of a reduction in statewide GHG emissions to 1990 levels by 2020.  The court upheld the CDFW’s discretion to use this threshold, finding that the CDFW’s GHG analysis was consistent with the CEQA Guidelines and supported by substantial evidence in the record.

Amicus Curiae Briefs

  • Los Angeles County Metropolitan Transportation Authority, Metropolitan Transportation Authority of Southern California, Foothill/Eastern Transportation Corridor Agency, San Joaquin Transportation Corridor Agency, Kern County Water Agency, Riverside County Transportation Commission, and State Water Contractors, in support of Defendant and Appellant;

Amici argue the collection and relocation of stickleback by the United States Fish and Wildlife Services (USFWS) personnel or its agents is not a form of prohibited “take” or “possession” under the Fish and Game Code.  Even if it were, the Supremacy Clause would prevent the CDFW from prohibiting such actions by agents of the USFWS.  Amici also argue agencies must have discretion to use Air Resources Board GHG targets to make CEQA significance determinations.

 

  • Environmental Protection Information Center, in support of Plaintiffs and Respondents;

Amicus alleges the court’s unnecessary “harmonization” conflated the California Fully Protected Species Laws and the CESA, when these two statues are very distinct.  It also argues the court’s decision (that live trapping and transplantation are not unlawful take or possession) fundamentally alters CESA by creating a loophole to CESA’s take prohibition.  And lastly, amicus claims that even if CESA conservation applied to the Fully Protected Species Laws, it does not apply here because the activity at issue involves CEQA mitigation rather than CESA conservation.

 

  • Santa Clarita Valley Economic Development Corporation, in support of Defendant and Appellant;

Amicus argues the CDFW’s analysis of GHG emissions fully complies with CEQA.  CBD’s argument as to the deficiencies in the CDFW’s analysis is not only incorrect, but it is not prejudicial, thus, CBD is not entitled to relief.  Additionally, amicus argues CBD’s interpretation of CEQA places form above substance, ignoring the CEQA requirement of balancing environmental issues with other competing considerations.  Lastly, the CDFW properly exercised its discretion in approving the project even in the face of significant environmental impacts, as evidenced by the statement of overriding considerations.

 

  • Planning and Conservation League, in support of Plaintiffs and Respondents;

Amicus is primarily concerned with the exhaustion doctrine, arguing that Ventura Coastkeeper and Wishtoyo Foundation made their comments on the final EIR/EIS four months before approval, giving the CDFW ample time to consider any final EIS/EIR inadequacies.  Additionally, amicus argues the Legislature intended CEQA exhaustion requirements to permit public comment until the last anticipated opportunity, which is the final public hearing on the project.

 

  • The Karuk Tribe, The Kashia Band of Pomo Indians of Stewarts Point Rancheria, The Pala Band of Mission Indians, The Pechanga Band of Luiseno Indians, The Santa Ynez Band of Chumash Indians, and The TInoqui-Chaloa Council of Kitanemuk & Yowlumne Tejon Indians of the Former Sebastian Indian Reservation, in support of Plaintiffs and Respondents;

Amici primarily argue that requiring issue exhaustion during the draft EIR comment period adversely affects tribal participation in CEQA.  Tribal cultural resource issues are often addressed late in the CEQA process, and thus Tribes may not be able to comment until it is too late.  Amici argue this requirement goes against the most recent state legislative mandates, which necessitates agencies to increase tribal participation in the CEQA process.

 

  • California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry Association of the Bay Area, California Business Properties Association, and California Association of Realtors, in support of Defendant and Appellant;

Amicus urges the court to apply judicial deference to three specific issues: (1) the CDFW’s conclusion the project will not harm stickleback; (2) thresholds of significance are supported by substantial evidence; and (3) the CDFW’s interpretation of take is reasonable and conforms to legislative intent.  Amicus also argues exhaustion under CEQA requires comments to be timely and sufficiently specific; late and vague comments are not good faith efforts of public participation.

 

  • George Deukmejian, Pete Wilson and Gray Davis, in support of Defendant and Appellant;

Amici argue CBD’s interpretation of “take” is contrary to the language and intent of the Fish and Game Code, and would take away the CDFW’s ability to develop methods for protecting special status species.  Amici also argue the exhaustion requirement should not be relaxed.  Lastly, amici claim the CDFW properly exercised its discretion in evaluating the project’s GHG impacts; the CEQA Guidelines provide agencies with discretion to select the methodology with which to analyze a project’s GHG impacts.

 

  • Sacramento Metropolitan Air Quality Management District, in support of Defendant and Appellant;

Amicus argues the CDFW reasonably relied on AB 32 in setting its GHG thresholds because CEQA vests agencies with such discretion.  Also, amicus argues the CDFW properly exercised its discretion by applying the 2020 BAU methodology to determine whether the project’s emissions were significant.

 

  • San Joaquin Valley Air Pollution Control District and County of Kern, in support of Defendant and Appellant;

Amici argue the CDFW’s GHG analytical methodology and significance conclusions are supported by substantial evidence in the record.  Compliance with environmental standards is a long recognized method for evaluating a project’s impacts.  Additionally, amici argue that the Legislature’s enactment of express GHG reduction targets strongly suggests CEQA does not silently impose other targets, as CEQA’s general provisions cannot be read to override specific standards adopted by the Legislature.  Lastly, there is no evidence of a prejudicial abuse of discretion; CEQA only requires completeness and a good-faith effort at full disclosure, which is what the CDFW did here.

 

  • The League of California Cities, California State Association of Counties, California Special Districts Association and Southern California Association of Governments, in support of no party;

Amici urge the court to uphold the CDFW’s discretion to interpret and apply CESA and the Fully Protected Species Laws.  Amici also argue the court should preserve the requirement that parties raise their objections during the available public process.  Lastly, both AB 32 and CEQA give agencies discretion to determine how to meet GHG reduction goals.

 

  • Sierra Club, in support of Plaintiffs and Respondents;

Amicus argues the CDFW’s GHG analysis violates CEQA because the EIR (1) uses an improper baseline to evaluate climate change impacts; and (2) fails to provide substantial evidence that a 29% reduction from Business as Usual (BAU) is sufficient to mitigate the project’s GHG impacts.  Under the CDFW’s application of the BAU comparison, few projects would result in a significant impact on the environment.

 

  • California Chamber of Commerce, in support of Defendant and Appellant;

Amicus argues the CDFW must have discretion to analyze GHG impacts of the project, especially given the technical complexity involved.  Additionally, amicus claims CDFW’s analysis of GHG emissions did not prejudice CBD, therefore, no relief is justified.  Lastly, amicus asks the court to clarify the standard for exhausting administrative remedies under CEQA.

 

Case Implications

  • Regarding “take”:

The case presents a first-ever hard look at the intersection of a number of key provisions of the Fish and Game Code.  Specifically, the definition of “take” under state law as it relates to species protected under the California Endangered Species Act (CESA) and designated as “fully protected”; the state definition of “conservation” under CESA; and state law prohibiting “take” or any such authorization by CDFW for state designated fully protected species.

 

Should CDFW prevail, project proponents working with state and federal wildlife agencies may benefit from broader, more progressive notions of conservation, particularly when it comes to designing and implementing measures to avoid and minimize harm to various special status species.

 

Should petitioners prevail, a more narrow view of “conservation” would control under state law, particularly as to species designated as “fully protected.”

 

  • Regarding “exhaustion”:

Governor Jerry Brown has stated: “Like California, CEQA must be more nimble,” must “expedite litigation timelines while preserving informed decision-making and mitigation of environmental harm,” and must “help reduce the time and costs” of environmental review. (Gov. Jerry Brown, Press Release (Jan. 25, 2012) Petitioners’ interpretation of the exhaustion of administrative remedies requirement would do just the opposite by unnecessarily and unjustifiably protracting the CEQA review process and adding to the significant costs of review

  • Regarding GHG emissions:

Petitioner’s restrictive position would prohibit any increase in greenhouse gas emissions over existing conditions.  Such position, if adopted by the Court, would have drastic consequences for California’s economy, job growth and competitiveness.  Because few new projects on undeveloped or under-developed sites would be able to meet such a standard, much-needed investment would be driven out of the state, stalling economic growth.

The record before the court discloses the enormously damaging implications to billions of dollars of transportation and water supply improvement projects should there be a holding that CEQA lead agencies have no discretion to use the Air Resources Board-approved Scoping Plan greenhouse gas emissions reduction target as a significance threshold under CEQA.  As a result of such an outcome, California would be prevented from pursuing development of under-developed land despite projected increases in its population and the dire need for much-needed housing and improvements to its transportation and water supply infrastructure.

Key Cases that May be Affected by the Court’s Ruling

  • Tomlinson v. County of Alameda (2012) 54 Cal.4th 281;

 

The court examined the exhaustion of administrative remedies.

  • North Coast Rivers Alliance v. Marin Municipal Water Dist. (2013) 216 Cal.App.4th 614;

 

This case addressed an agency’s ability to select its own significance thresholds.

  • Assn. of Irritated Residents v. State Air Resources Board (2012) 206 Cal.App.4th 1487; Here, the court evaluated CARB’s authority/expertise in matters pertaining to GHG emissions.
  • Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.App.4th 98; Here, the court indicated that the “one additional molecule rule” is not the law.
  • Neighbors for Smart Rail v. Exposition Metroline Construction Authority (2013) 57 Cal.4th 439; Here, the court examined an agency’s ability to establish a future baseline.
  • Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (2014) 59 Cal.4th 1029;

 

Here, the court addressed statutory construction and held that environmental review under CEQA was not required before a city council could directly adopt a voter initiative for a land-use plan pursuant to Elec. Code, section 9214, subdivision (a).