By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.

History of the Natomas Basin HCP

The Natomas Basin is a nearly 54,000 acre area just north of Sacramento. Though plaintiffs and defendants characterize the habitat value of the area differently, there is no dispute that both Swainson’s hawks and giant garter snakes make their homes there. Both of these animals are listed as threatened species under CESA and the federal Endangered Species Act (“ESA”).

In the 1990’s, the City and County joined with state and federal agencies (jointly the “agencies”) to develop an HCP to protect various plant and animal species in the Natomas Basin. The plan was developed due to concern over the Natomas Basin’s fast growth and development. By 1997, the agencies drafted the initial HCP. It was challenged and although the state permits were upheld, the federal permits were not. In response, the agencies went back to the drawing board and revised the plan. This case deals with that revised HCP. It was certified in 2003 and was again challenged. The federal court held that the issuance of the incidental take permits were permissible under the federal ESA. This case is the state challenge to the revised plan.

The plan itself states that only 17,500 acres can be developed under the incidental take permits issued by DFG. The CESA allows DFG to issue these permits only if impacts to protected species are “minimized and fully mitigated” in a manner “roughly proportional in extent to the impact of the authorized taking on the species.” (Fish & G. Code, § 2081(b)(2).) Part of the HCP creates upgraded habitat in the non-developed acreage. The plan also provides that the Natomas Basin Conservancy will manage the habitat and monitor the protected species. Also, the plan establishes the purchase of one-half acre for every developed acre. This will be funded with developer mitigation fees and will be done regardless of the habitat quality of the developed land. Finally, the HCP provides many strategies for protecting habitat, including pre-construction surveys and grading restrictions. The HCP can also be modified to allow for changing situations and permits may even be totally revoked if monitoring shows that the species are not being adequately protected.

The court pointed out that though the federal ESA requires an HCP before an incidental take permit can be issued, the CESA does not. But, DFG has modeled its process after the federal ESA and has made HCP development a priority. Also, under CEQA, the HCP and its implementation plan comprise a “project” requiring environmental analysis. In this case, the various agencies involved prepared an EIR for the project. Each of the agencies made extensive findings based on voluminous evidence to certify the EIR and issue the incidental take permits.

In December 2002, the City and County adopted a Memorandum of Understanding which laid out the joint vision as to any future land use in the Natomas Basin (“Joint Vision MOU”). It was characterized as the trial court as a “road map”, but it did not involve any specific land use proposals or authorize or approve any specific development.

Plaintiff’s Allegations

The court condensed the plaintiffs allegations down to three issues:

  1. The agencies failed to examine the impacts to protected species generated by the Joint Vision MOU
  2. The mitigation measures are under-funded and unenforceable
  3. The one-half to one acre ratio for land purchase is improper

Standard of Review

The scope of review for CEQA and CESA claims is limited. The court must review the record for a prejudicial abuse of discretion. (Pub. Res. Code, § 21168.5.) Plaintiffs in CEQA challenges bear the burden of proving a prejudicial abuse of discretion by establishing that there is no substantial evidence to support the agencies’ decision. Under CESA, the plaintiffs must show that the lead agency did not proceed in a manner required by law. (Code Civ. Proc., § 1094.5.)

Impacts to species generated by the MOU

The plaintiffs first challenged the sufficiency of the FEIR; specifically that the Joint Vision MOU contemplated more development than was analyzed in the HCP and that the planners were merely going along with the private developers. Though the court was aware of this concern, it noted that these policy concerns were not valid CEQA challenges. The court said that the issue “is not the wisdom of the policies adopted by the public agencies, but whether they complied with CEQA and CESA.” The court then agreed with the lower court and the federal courts, which concluded that that any future development was too speculative to attempt to analyze in an environmental document. Also, the final EIR for the HCP discussed the MOU and fully disclosed its terms. “Premature environmental review requires rank speculation as to possible future environmental consequences, a needlessly wasteful drain of the public fisc.”

In determining whether the MOU should have been thoroughly analyzed in the EIR, the court cited Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671, which says that “the sufficiency of an EIR as an informative document is judged in light of what is reasonably feasible.” The court said that any future development is “unspecified and uncertain” and thus any environmental review attempt would be a waste of resources and of no use to the readers. The court also pointed out that the FEIR for the Natomas Basin HCP disclosed the terms of the Joint Vision MOU and any potential for growth. The plaintiffs did not point to any “probable future project” that was not analyzed. Thus, the court held that the FEIR was sufficient under CEQA.

Project opponents also claimed that the County and City failed to consider known threats to species protected under CESA. Their claimed threats would result from the development contemplated in the MOU. But the court again characterized the MOU as a “vague planning document” and said that since there were no specific developments or projects being actively planned, that “CESA, like CEQA, does not require wasteful speculation on potential projects yet to be conceived or described.”

Mitigation Measures

The plaintiffs next contended that the mitigation measures included in the FEIR were “underfunded, voluntary, and unenforceable.” They particularly challenged the measures that called for retention of agricultural land outside of the permit areas, the maintenance of snake habitat, and the preservation of habitat through setbacks from development. The court, though, explained that the plaintiffs were mistaking baseline assumptions about project conditions for mitigation measures. The court noted that this also occurred in Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, but the court there rejected the approach as well. Here, the court said that Public Resources Code section 21080 allows “[A] public agency [to] make reasonable assumptions based on substantial evidence about future conditions without guaranteeing that those assumptions will remain true.” In Village Laguna, the court said “the assumptions referred to are actually integral portions of the proposed project. If they fail to become reality (e.g., if the transportation corridor is not built), we are dealing with a different project. However, CEQA only requires that an EIR discuss the significant environmental effects of the proposed project.” The court here found that there was substantial evidence in the record to support the agencies’ baseline assumptions, including “historic land use patterns, adopted general plans and policies concerning this land, state and federal regulations, and limitation so the provision of water and sewer systems.” Also, the County and City could not approve new development beyond what was already authorized under the HCP until additional environmental assessments were performed. Thus the plaintiffs’ complaints about the mitigation measures were misplaced and ultimately not successful.

Ratio of habitat mitigation land

The plaintiffs finally challenged the one-half to one acre ratio of mitigation land purchase as insufficient and claimed that a one to one ratio is more accepted. The City and County had rejected the one to one ratio as infeasible because it would lead to mitigation fees so high as to exceed the impacts caused by the projects. CEQA Guidelines section 15126.4 says that mitigation measures must be roughly proportional to project impacts. The EIR also pointed out that the one to one ratio may lead to excessive slowing of development and could result in harm to economic growth and productivity due to the high cost of replacing land at the higher ratio. The court held that there was substantial evidence to support the County and City’s determination of infeasibility, and that it could not second guess the decision of the agencies. The court also pointed out that the one-half acre replacement rate would be followed regardless of the habitat value of the affected land, and it said, “We agree with the defendants that plaintiffs tend to equate habitat loss with take. The two are not synonymous.”

Conflicting scientific evidence

The plaintiffs further challenged the sufficiency of the evidence for the finding that the HCP would minimize and mitigate detrimental impacts on the hawks and snakes. Though the plaintiffs presented evidence from scientists who concluded that the HCP was not sufficient, this court said that it must defer to DFG’s expertise in resolving conflicting scientific data. “We will not arbitrate between scientists and we will not intrude on the public agencies’ duties to make policy and protect the species.” The court held that the evidence was more than sufficient to uphold DFG’s findings.


The court’s decision upholds the multi-agency HCP. More importantly, it cements the viability of habitat conservation plans and their usefulness for long term, comprehensive planning when many agencies are involved. It also establishes guidelines for the amount of evidence needed to support findings and shows how a court may examine their sufficiency. This decision goes a long way toward meeting the twin goals of sufficient development for California’s growing population and protection of threatened and endangered species.

Janell M. Bogue is an associate with Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.