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CEQA Updates

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

Posts Tagged ‘ESA’


Public Trust Doctrine Applies to Groundwater, Sustainable Groundwater Management Act Exists Concurrently with Common Law and Did Not “Occupy the Field”

Wednesday, August 29th, 2018

The Scott River appears to be dry sand in October of the 2014 California Drought.

In Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, the Third District Court of Appeal held that the public trust doctrine applies to groundwater basin management where groundwater may effect “navigable waters” and the Sustainable Groundwater Management Act (SGMA), Water Code section 10720 et seq., did not change this.

The parties stipulated to the facts and issues for the Court to address. The Scott River is a tributary of the Klamath River and a navigable waterway located in the northwest California. The Scott River has historically been used for water recreation and serves as habitat for salmon species listed in the Endangered Species Act. Groundwater aquifers adjacent to the Scott River in Siskiyou County (County) are hydrologically connected to the surface flows of the Scott River. Local farmers drilled groundwater wells and, in some summers and early fall months, the River was dewatered due to the groundwater pumping.

Environmental groups petitioned the County and the State Water Resources Control Board (SWRCB) to take administrative action to limit pumping in the Scott River watershed based on the public trust doctrine. When both refused, Environmental Law Foundation (ELF) filed suit.

ELF alleged that groundwater resources, which are interconnected with the surface water flows of the Scott River, are subject to and protected by the State’s public trust doctrine. The SWRCB reconsidered and adopted ELF’s position before the litigation concluded. The County claimed that it had no duty to limit groundwater pumping or consider its environmental impacts. The County further claimed that SGMA, which created a statewide system of groundwater management, was a comprehensive statutory scheme that displaced common law principles like the public trust doctrine. The trial court held that the public trust doctrine applies to groundwater in this case and SGMA did not effect this. The County timely appealed.

The Appellate Court, with Presiding Justice Raye writing for a unanimous Court, relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 and held that groundwater in the Scott River Valley is subject to the public trust doctrine. In National Audubon, the Supreme Court held that the public trust doctrine fully applies to the State’s complex water rights system. Specifically, the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine. The Court held that the Scott River facts were analogous to those in National Audubon as the pumping was similarly effecting the water level of the river. However, there was a heightened duty to protect the Scott River where it is a navigable waterway. “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violate the public trust.” Accordingly, the Court concluded that the public trust doctrine fully applies to extractions of groundwater that effect a navigable waterway.

The Court then held that, by enacting the SGMA, the Legislature did not intend to “occupy the field” of groundwater management and thereby abolish the public trust doctrine. Definitively, the Court held, “the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

The Court affirmed the trial court’s decision.

Key Point:                                                            

The State and its legal subdivisions must concurrently consider public trust principles and the Sustainable Groundwater Management Act in monitoring groundwater resources. Further, only where the Legislature intended to “occupy the field” will common law principles be superseded by Legislative acts.

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

Friday, July 20th, 2018

Island Foxes, a species no longer listed as endangered, in the Channel Islands National Park in California. (U.S. Fish and Wildlife Service)

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.

Third District Court of Appeal Gives Great Deference in Quasi-Judicial Agency Decision Not to Delist Coho Salmon, Ending Decades-Long Dispute

Friday, January 5th, 2018

Drawing of an adult male coho salmon (A. Hoen and Co, Department of Commerce and Labor Bureau of Fisheries)

In Central Coast Forest Association v. Fish and Game Commission (2018) 18 Cal. App. 5th 1191, the California Third District Court of Appeal found the California Fish and Game Commission (Commission) was correct to deny a petition to delist coho salmon from state protection under the California Endangered Species Act (CESA). Deferring to the scientific expertise of the Commission, the Court held there was substantial evidence to support the decision where petitioner’s arguments rested purely on speculation.

To delist a species under CESA, the Commission must find a petition is warranted and, if so, determine if the action to list or delist is warranted. The Commission bases these initial and secondary findings on highly-technical and scientific information from the Department of Fish and Wildlife.

The coho salmon in southern San Francisco/Santa Cruz County have been a CESA-listed endangered species since 1995. In 2004, the Commission expanded the listing’s parameters and delineated coho salmon north of Punta Gorda as a threatened species and coho salmon south of Punta Gorda as an endangered species. Central Coast Forest Association and Big Creek Lumber Company (Petitioners) sought delisting of the southern coho salmon. Petitioners alleged the fish were not endangered species as there were never wild, native salmon in the region; and if there were, they were destroyed by unfavorable environmental conditions. Further, the salmon present are solely sustained by hatchery plants, and as such, are not wild or native to California.

The Commission considered and denied Petitioners’ delisting petition in 2005 and again in 2007 for failing to contain sufficient scientific information. Petitioners twice failed to gain an order from the Superior Court overturning the decisions. Upon appeal, the California Supreme Court remanded the matter to the Third District Court of Appeal.

In reviewing, the Court focused on the sufficiency of the evidence and the deference they award to such determinations. Petitioners were required to present sufficient information to indicate the delisting may be warranted, information that would lead a reasonable person to conclude that there was a “substantial possibility” delisting could occur. Evidence is sufficient only if it is material, credible, supports the petition, and, when weighed against the Commission’s written report and any comments received, is strong enough to indicate that delisting may be justified.

Where the Commission’s decision to delist species is quasi-judicial, a higher deference is awarded to Commission findings. Specifically, the Commission’s technical and scientific resources and its legally wide discretion in decision-making makes the Court affirm the decision where the weight of the evidence is clearly justified or unclear. The Court will only reverse the decision where the evidence clearly weighs against it.

The Court examined the Commission’s evidence and Petitioner’s evidence regarding coho salmon’s historical existence in the contested area; including archaeological Native American middens, historical newspaper articles, hatchery records, drought and flood records, historical environmental factors, and genetic evidence. The Court found the Commission’s evidence was sufficient to determine Petitioner’s delisting petition unwarranted. The Commission showed that coho salmon are native to the contested area by genetically sequencing and comparing extant salmon with salmon museum specimens collected in 1895 from four adjacent streams in Santa Cruz County.

The Commission’s evidence also showed the sustained coho salmon population is not the result of hatchery planting. Historic hatchery output was sporadic and small in the southern San Francisco region, therefore the current population was not likely descended from local stock and no genetic evidence showed the current population is descended from out-of-state stock. The Court noted that even if existing populations were bolstered by local non-wild hatchery fish, these fish would genetically be considered California-native hatchery fish, and thus would be protected by the CESA.

Ultimately, the Court dismissed Petitioners’ evidence for it was “circumstantial” where they were “pick[ing] out bits of information that appear to substantiate their claim.” Thus, the Commission’s decision was appropriate where Petitioners’ claims were the product of “no scientifically credible data” and “[w]hat the petitioners call ‘evidence’ is actually persuasive writing, not valid scientific evidence.”

Answering technical questions posed by the Supreme Court, the Court found that a species “range” for consideration, per the Department of the Interior interpretation, is wherever the species is found, not only where it is known or historically known to be. Further, a portion of a listed species may only be delisted where it is individually “carved out” as a separate species, unlike what was petitioned for here.

Because the Commission has highly technical knowledge and delegated authority to list and delist endangered species, the Court affirmed the Commission decision to deny the delisting petition.

Key Point:

Where a quasi-judicial agency decision is challenged, the Court will give great deference to the decision, affirming where evidence is sufficient or unclear to support the decision. Sufficient evidence to the contrary is where credible, scientific based evidence outweighs the agency’s evidence.

Water Service Contracts in Central Valley Survive Endangered Species Act Challenges

Tuesday, August 7th, 2012

In Natural Resources Defense Council v. Salazar, (2012) 2012 U.S. App. Lexis 14614, the 9th District Court of Appeals affirmed a grant of summary judgment, concluding plaintiffs did not have standing to challenge the renewal of certain water service contracts under the Endangered Species Act and that renewal of other water service contracts was exempt from the Endangered Species Act.

In 2005, the United States Bureau of Reclamation (Bureau) renewed 41 water service contracts to provide water from the San Joaquin and Sacramento Rivers to users. Some of those contracts (settlement contracts) were initially entered in 1964 to settle the claims pertaining to the priority of water rights established before the Central Valley Project (CVP). The CVP is a project operated by the Bureau which began in the 1930’s to regulate the flow of water in the San Joaquin and Sacramento Rivers. The remaining contracts (DMC contracts) were initially entered with a coalition of users who obtained service from the Delta-Mendota Canal.

Plaintiffs, environmental organizations and the Metropolitan Water District of Southern California, filed a lawsuit challenging the renewal of the contracts on the basis such renewal violated section 7(a)(2) of the Endangered Species Act. Specifically, they claimed the Bureau had not met its requirements under section 7(a)(2), which requires federal agencies to insure that their actions are not likely to jeopardize the continued existence of any endangered species, to protect the Delta Smelt, a small fish added to the endangered species list in 1993. The trial court granted summary judgment to defendants on the grounds that plaintiffs did not have standing to challenge the renewal of the DMC contracts and renewal of the settlement contracts was exempted from section 7(a)(2).

Plaintiffs appealed, claiming they had standing and the renewal of the contracts was not exempt from the requirements of section 7(a)(2). First, the court rejected the defendants’ assertion that the case was mooted by the US Fish and Wildlife Service 2008 opinion. That opinion concluded the renewal of the contracts would not likely adversely affect the Delta Smelt and defendants argued it effectively eliminated any case or controversy. This assertion did not hold because a California District Court concluded the 2008 opinion was partially unlawful and because it was also unclear whether it considered the contracts at issue.

On the standing issue, the Court affirmed that the plaintiffs did not have standing to challenge the renewal of the DMC contracts. Standing did not exist here because the relevant contracts contained a shortage provision which expressly allowed the bureau to take any action to meet its legal obligations, including not delivering water to DMC contractors to satisfy section 7(a)(2) requirements. That provision prevented any causal connection from the renewal of the contracts to the threatened injury (i.e., jeopardy of the Delta Smelt) because the contracts expressly allowed for section 7(a)(2) compliance. That being the case, plaintiffs failed to meet the standing requirement of tracing injury to defendant’s conduct.

Last, the court affirmed that the renewal of the settlement contracts was exempt from section 7(a)(2). Section 7(a)(2) only applies to federal agency action where such actions are discretionary. Renewing the settlement contracts was not a discretionary action because the Bureau was required, pursuant to the Central Valley Project Improvement Act, to comply with all California Water Resources Control Board decisions, including the decision requiring the Bureau to address the issue of those claiming senior water rights under California law. The Bureau recognized such rights when it entered into the settlement contracts, the terms of which require renewal for the same quantity and allocation of water to be delivered to the contractors. Thus, “[t]he Bureau’s hands are tied historically by those asserting senior water rights in the CVP.”

Key Points:

An agency’s opinion cannot moot an issue when a court subsequently holds the opinion to be unlawful. A plaintiff cannot establish a link between renewing a contract and injury under the Endangered Species Act for standing purposes where the contract specifically provides for compliance with the Endangered Species Act. Renewal of water service contracts which grant water rights based on pre-CVP water rights seniority is exempt from section 7(a)(2) of the Endangered Species Act.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

CSU Board of Trustees’ EIR for Campus Expansion was Held as Sufficient, with the Exception of its Analysis on Impacts to Surrounding Parklands

Tuesday, June 12th, 2012

In an unpublished decision, City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. Unpub. LEXIS 4097, the Board of Trustees of the California State University (Trustees) wished to expand its Hayward campus in order to meet its assigned enrollment ceiling.  In 2009, the Trustees approved a master plan to guide campus development for the next 20-30 years.  The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands.  The California First Appellate District reversed the trial court’s holding and found that the Trustees’ EIR was adequate, with the exception of parklands.  The court therefore modified the writ of mandate ordering the Trustees to revise the analysis of potential environmental impacts to surrounding parklands.

Based on the Trustees’ analysis on fire protection and public services, the court came to four conclusions.  First, the court found substantial evidence to support the Trustees’ conclusion that additional and expanded fire facilities will not have a significant environmental impact.  Second, the court held that the Trustees did not have to provide mitigation measures for the new fire facilities since they concluded that more fire protection services would not result in significant environmental impacts.  Third, the court stated that the Trustees do not need to fund the expansion of the fire department services but rather the city has a constitutional duty to provide such services.  Lastly, the court found that the EIR sufficiently analyzed the impact of the campus expansion on the city’s public services and properly came to the conclusion that the “cumulative effect would be less than significant.”

The court next addressed the issue of traffic and parking.  The court first held that the Trustees’ analysis of potential sites for faculty housing was sufficient.  Since the Trustees prepared a program EIR as opposed to a project EIR, they properly deferred site-specific analysis of possible environmental effects of building faculty housing until a later time.  The court next examined the Trustees’ mitigation measures.  With the main goal of shifting commuters out of single-occupant cars and into carpools, transit, biking, and walking, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable.  Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.”  (City of Hayward, 2012 Cal. App. Unpub. LEXIS 4097 at 60.)  Since the City did not raise this issue in its opening brief, the court declined to address it and held it as waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR.  While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level.  The court also explained that since neither the trial court nor the City suggested further mitigation measures the Trustees should consider, then that portion of the Trustees’ EIR was sufficient and did not need to be reexamined.

Impacts on parklands was the one area with which the court agreed with the City and the lower court.  The court explained that the Trustees’ reliance on “long-standing use patterns” of the students as opposed to factual evidence was “nominal” and did not prove a meaningful enough  analysis to inform or analyze the extent of the impact the master plan was likely to have on surrounding parks.  Therefore, the court ordered the Trustees to reanalyze those impacts prior to certifying a revised EIR.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.