Court Clarifies "Taking" Of Endangered Species And Highlights What's "Enough" Under CEQA

by Stoel Rives LLP

In Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, No. B245141 (Cal. Ct. App. 2d Dist. Mar. 20, 2014), the appellate court reversed the trial court’s decision, which found that the Department of Fish and Wildlife’s (“Department”) certification of an environmental impact statement and report (“EIR”) was “not supported by substantial evidence.”  In a sprawling 117-page, published Opinion, the appellate court rejected the notion that a 5,828-page, project level EIR, which did not approve any specific construction, was insufficient. 

We focus only on the Department’s challenged certification of the EIR, which studied a resource management plan, conservation plan, and streambed alteration agreement, as well as the issuance of incidental take permits under California’s Endangered Species Act (“CESA”).  The underlying Newhall Ranch project, a specific plan approval in Los Angeles County, would allow residential, mixed-use, and non-residential land uses and provide up to 21,308 dwelling units, essentially building a new city.  The trial court found, among other things, that the Department “failed to conduct an independent review of project impacts,” that many of its findings were not supported by substantial evidence, and that it failed to prevent the taking of the Unarmored Threespine Stickleback (“stickleback”), a fully protected fish under CESA.

The appellate court found that the trial court overstepped its role in the CEQA process.  Early on, the appellate court emphasized that the trial court’s role is “not to pass upon the correctness of the [EIR’s] environmental conclusions, but only upon its sufficiency as an informative document.”  (Slip Op. at p. 15.)  Indeed, the court found that arguments posited by plaintiffs, including the Center for Biological Diversity (“CBD”), i.e., those accepted by the trial court, “contravene the foregoing standard of review for an environmental conclusion.  With little exception, the plaintiffs’ analysis requires reweighing of conflicting opinions and evidence.”  (Id.)

In an unusual step, the appellate court devoted over 15 pages of its Opinion to summarizing the multiple scientific studies that supported the County’s consideration of stickleback mitigation measures in the EIR.  For example, the appellate court summarized a mitigation measure requiring that, “[i]f surveys determine that gravid [stickleback] are present, that spawning has recently occurred, or that juvenile [stickleback] are present in the proposed construction areas, all activities within the aquatic habitat will be suspended.”  (Slip Op. at p. 18.)  The appellate court also painstakingly detailed a technical report and recommendations on relocating sticklebacks as a mitigation measure, where the preceding conditions are not met.  

In what appears to be a novel holding, the appellate court clarified that live trapping and transplantation of a protected species does not constitute “take” (actual or attempted “hunt, pursue, catch, capture or kill”) under CESA.  CBD argued that a mitigation measure providing for stickleback relocation constituted a “take” under CESA.  Examining the “close” issue of whether herding and moving stickleback to different areas as a mitigation measure constituted a “take,” the appellate court found:

Fish and Game code section 2061 expressly permits the use of live trapping and transplantation if done for purposes of conservation; Fish and Game Code section 2055 requires the department use its authority to further [CESA’s] purpose which includes conservation; and all of this has occurred in the context of the imposition of the mitigation measures.  Hence, the live trapping and transplantation techniques used in this case do not constitute an unlawful take or possession. 

(Slip Op. at p. 48.)

Another notable finding in the Opinion comes from the appellate court’s refusal to consider certain alleged legal flaws in the EIR, because of plaintiffs’ failure to properly exhaust such issues before the Department.  Before an alleged CEQA violation can be raised in litigation, CEQA requires that the issue be presented to the public agency “during the public comment period provided by this division or prior to the close of the public hearing on the project . . . .”  (Pub. Res. Code § 21177(a).)  While CEQA does not require a public agency to hold a hearing to certify an EIR, a typical project analyzed in an EIR requires the issuance of specific permits or approvals that, in turn, require public hearings.  When a public hearing is held, public comment on an EIR can be lodged up until the close of the public hearing.  (Pub. Res. Code § 21177(a).) 

Here, however, the Department’s certification of the final EIR did not require a public hearing.  The appellate court found that all of CBD’s CEQA litigation issues thus had to be presented during the comment period on the Draft EIR.  (Pub. Res. Code § 21177(a).)  Because CBD did not exhaust all of its issues during the 120 day public comment period, several of CBD’s alleged CEQA violations were deemed forfeited. 

In a future post, we will address an unpublished portion of the Opinion that adds to the body of existing caselaw regarding how to analyze greenhouse gas emissions under CEQA.


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