By Diane G. Kindermann
In a lengthy and unanimous reversal of the trial court on ESA and CEQA issues in Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) ___ Cal.App.4th ___, the second appellate district, Division Five, roundly upheld the Department of Fish and Wildlife’s (“department”) certification of an environmental impact report (“EIR”) assessing the effects of a resource management plan, conservation plan, streambed alteration agreement and two incidental take permits, in tandem with approval of each plan and issuance of the associated incidental take permits. The EIR related to general planning and conservation steps resulting from Los Angeles County’s prior approval of a 12,000 acre specific plan and neighboring 1500 acre conservation area in Ventura County. In its textured opinion, the appellate court relied heavily on facts in the trial court record to perforate all arguments raised by the Plaintiffs and Respondents Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.
One novel issue raised in the case involved a challenge to a mitigation measure that recommended the herding and transportation of a fully protected species, the stickleback fish, and a claim that such mitigation constituted a prohibited take of the species under the California Endangered Species Act (“CESA”). The appellate court deftly resolved potentially conflicting language in a trio of CESA code sections to conclude that conservation mitigation measures which including herding and transporting live species, did not constitute a take of the species.
The opinion is partially published, omitting from publication the discussion regarding the appropriate baseline for greenhouse gas issues to assess cumulative impacts of greenhouse gas emissions and the related significance analysis.
This summary addresses key issues in the published portion of the decision in the order as presented in the opinion:
A. Underlying Land Use Approvals and Subsequent Actions
B. Complaint Allegations and Trial Court Ruling
C. Standard of Review
D. CESA and Stickleback Take Issues
E. Cultural Resources Analyses
F. Specific Plan and Alternative 6
G. EIR’s Steelhead Smolt and Water Quality Analysis Deemed Adequate
H. Spineflower Mitigation and Incidental Take Based on Substantial Evidence
A. Underlying Land Use Approvals and Subsequent Actions.
Newhall Ranch Specific Plan (the specific plan)
On May 27, 2003, the County of Los Angeles approved the Newhall Ranch “specific plan” that includes a broad range of residential, mixed-use and non-residential land uses within five villages, allowing for up to 21,308 dwelling units (including 423 second units), 629 acres of mixed-use development, 67 acres of commercial uses, 249 acres of business park land uses, 37 acres of visitor-serving uses, 1,014 acres of open space, including 181 acres of community parks and 833 acres in other open spaces, 5,157 acres in special management areas, 55 acres in 10 neighborhood 4 parks, 15-acre lake, public trail system, an 18-hole golf course, two fire stations, a public library, an electrical station, reservation of five elementary school sites, one junior high school site and one high school site, a 6.8 million gallon per day water reclamation plant and other associated community facilities. The build-out of the Specific Plan was projected to occur over approximately 25 to 30 years, depending upon economic and market conditions. It would eventually result in an on-site resident population of 57,903 persons.” The specific plan contemplated the need for future federal, state and other governmental agency environmental review, permits, agreements and authorizations.
Department’s Environmental Review
The Department of Fish and Game’s (now the Department of Fish and Wildlife) (“department”) EIR at issue in the case relates to the general planning and conservation steps resulting from the County’s specific plan. For EIR purposes, there are two components to the project. The first component is the environmental assessment of the Resource Management Plan. The resource management plan included a streambed alteration agreement and resulted in the required issuance of two incidental take permits. One permit was for the San Fernando spineflower, and the other permit was a multispecies permit for the western yellow-billed cuckoo, the southwestern willow flycatcher and the least Bell’s vireo, combined. The boundary of the resource management plan includes the 11,999 acre specific plan site, and the 1,517-acre Salt Creek conservation area in Ventura County which adjoins the specific plan area to the southeast.
The second component of the project is the environmental assessment of the spineflower conservation plan whose boundary encompasses two other planning areas located to the east and northeast of the specific development area respectively. Thus, the environmental planning and certification process extended beyond the development and specific plan areas.
California Department of Fish and Wildlife Approvals
On December 3, 2010 the department certified a revised final environmental impact statement and impact report; approved the Newhall Ranch Resource Management and Development Plan (resource management plan); the adoption of the Spineflower Conservation Plan (conservation plan) and Master Streambed Alteration Agreement (streambed alteration agreement); and issuance of two incidental take permits.
The department and the U.S. Army Corps of Engineers (USACE) jointly prepared the 5,828-page project level EIR, defining the project as a project-level EIR for the proposed resource management plan and conservation plan project components. The department determined that certification of the EIR was required before it issued the requested streambed alteration agreement and incidental take permits for the proposed project activities. Both federal and state environmental review were necessitated for the project, however the appellate court only reviewed the relevant state law issues.
B. Complaint Allegations and Trial Court Ruling
The six causes of action in the complaint bundled together routine CEQA allegations with CESA and other resource law allegations. The first cause of action alleged the EIR failed to comply with statutory and regulatory requirements as to the description of the project and the affected environment; water quality; biological resources; greenhouse gas emissions; cultural resources; air quality; traffic; cumulative impacts; alternatives; and responses to public comments. The second cause of action alleged a failure to recirculate the draft environmental report which required the certification be set aside. The third cause of action alleged that the issuance of the incidental take permits was an abrogation of the department’s affirmative duty to protect public trust resources. The fourth cause of action alleged the department’s findings were not supported by substantial evidence, specifically in connection with significant environmental impacts; the overriding considerations statement; feasible alternatives or mitigation measures; whether environmentally superior alternatives were infeasible due to costs; the damage done to the spineflower species; the continued existence and take of other species including the Southwestern willow flycatcher, and the Least Bell’s vireo and Western yellow-billed cuckoo; and the incidental take permits. The fifth cause of action challenged the issuance of the streambed alteration agreement. The sixth cause of action alleged a violation of Fish and Game Code section 5515 because the projects would result in the prohibited take of the unarmored threespine Stickleback (stickleback). This would result from: the direct destruction of its habitat; localized alterations in streamflow; other hydrological and fluvial geomorphological changes; transporting the species from one location to another and facilitation of hybridization of other stickleback species that could result in the extinction of the native population.
Trial Court Rulings
The trial court ruled that the department abused its discretion in six aspects: First, the EIR failed to adequately discuss the impact of dissolved copper discharged from the project area on steelhead smolt. Second, the department’s analysis of the spineflower mitigation measures was legally impermissible because there was no substantial evidence that the mitigation matters were adequate. Third, the EIR’s section of a baseline for assessing the cumulative impacts of the project’s greenhouse gas emissions was inappropriate. Fourth, the trial court ruled that the EIR’s assessment of the project’s impact on Native-American cultural resources was not supported by substantial evidence. Fifth, the department failed to prevent the taking of the stickleback. Sixth, the trial court ruled the department unduly relied upon the specific plan and failed to conduct an independent review of project impacts. The trial court rejected the plaintiffs’ remaining contentions and a judgment was entered in plaintiffs’ favor.
C. Standard of Review
The appellate court recognized that its standard of review depended upon the nature of the challenge to the EIR. The court further acknowledged that reviewing courts presume the correctness of an agency’s decisions in the EIR context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) It deferred to the Supreme Court description of the limited nature of judicial review: “In reviewing agency actions under [the California Environmental Quality Act], . . . section 21168.5 provides that a court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; see Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 195.)
A reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.
The reviewing court ‘“does not pass upon the correctness of the [environmental impact report’s] environmental conclusions, but only upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an agency’s approval of an [environmental impact report] on the ground that an opposite conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) Thus, the court must defer to an agency’s resolution of conflicting opinions and evidence. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 572; accord Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.)
While the opponents had differing views on the adequacy of the mitigation they were not able to overcome the deferential “substantial evidence” standard of review. The court noted that it must examine the department’s adherence to the law and environmental conclusions as specified in the record. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427; Melom v. City of Madera (2010) 183 Cal.App.4th 41, 47-48.)
With one exception (the admissibility of a post-environmental impact statement certification document), the appellate court did not review the trial court’s decision, but instead examined the department’s adherence to the law and its determinations.
D. CESA and Stickleback Take Issues
The appellate court addressed a trilogy of ESA inquiries in the shadow of the 20,000 foot CEQA issue, regarding the ability of the department to certify the EIR without an incidental take permit.
The ESA inquiries were: 1) did the proposed mitigation constitute a taking because it involved herding and transporting a fully protected species? 2) is the mortality of a fully protected species required in order for a take to have occurred? and 3), can conflicting ambiguous language in the ESA be reconciled to allow trapping and transportation of fully protected species if performed for conservation purposes? The appellate court answered the first two questions in the negative and the final question in the affirmative.
The stickleback species at issue is protected as endangered under for the Federal and State Endangered Species Acts. It is also deemed “fully protected” for purposes of Fish and Game Code Section 5515. Development related activities that would affect the stickleback were outlined in the resource management plan and included bridge, road and other construction as a precursor to future development.
Mandatory mitigation requirements were designed to insure that no stickleback take would occur. The mitigation measures were attached to the department’s factual findings of fact and were discussed in the EIR. The opinion described this numbered mitigation in great detail. For example, BIO-43 set forth requirements for preconstruction surveys by qualified biologists. Construction within aquatic habitats would only occur when it was determined that juvenile fish were not present. BIO-44 required the developer to prepare a “Stream Crossing and Diversion Plan” to protect stickleback during construction. BIO-44 further required that if stickleback were present and spawning has not occurred, they were to be relocated prior to streambed diversion or any crossing of the stream by herding. A [federal wildlife service] staff member or his or her agents “shall” relocate the fish to suitable habitat outside the [project] area (including those areas potentially subject to high turbidity). BIO-44, as in the case of other mitigation measures, was subject to specified monitoring requirements. BIO-45, identified standards for stream diversion bypass channels. No construction of diversion channels is to commence if surveys indicate that: gravid fish are present; spawning has recently occurred; or juvenile fish are present in the construction areas. “During any stream diversion or culvert installation activity, a qualified biologist(s) shall be present and shall patrol the areas within, upstream and downstream of the work area. The biologists shall inspect the diversion and inspect for stranded fish or other aquatic organisms. Under no circumstances shall the . . . stickleback be collected or relocated, unless [federal wildlife service] personnel or their agents implement this measure. Any event involving stranded fish shall be recorded and reported to [the department] and [the federal wildlife service] within 24 hours.”
The department and the USACE jointly concluded that the implementation of the mitigation measures would avoid take of the stickleback. The department’s conclusion that no take of the stickleback would occur was based upon multiple scientific studies. One of the leading authorities in the field of stickleback protection prepared a technical discussion of issues, including relocation of the stickleback. Nevertheless, the trial court ruled that the very mitigation methods were an illegal taking under Fish and Game Code Section 86.
Trial Court Ruling That the EIR Could Not Be Certified
The trial court ruled that an EIR could not be certified without the issuance of an incidental take permit because the very ‘mitigation’ methods recommended to be conducted with supervision by a [federal fish and wildlife service] biologist, such as block netting and fish relocation, falls within the meaning of [an] illegal ‘taking’ under the . . . Fish and Game Code. Without the issuance of an [incidental take permit], the mitigation measure cannot be implemented. Therefore, there was no substantial evidence to support the mitigation strategy on which [the department] relies to conclude that the construction processes associated with the [project] will not result in an illegal taking of the [stickleback].”
The Mitigation Measure Does Not Result In a “Take”
The appellate court reflected on the legislative history and plain meaning of the statutes in the CESA. First, the endangered species act was originally adopted in 1982. (Stats. 1984, ch. 1240, § 2, pp. 4243-4249.) When originally adopted, the endangered species act did not permit the department to authorize a take of a protected animal. Fish and Game Code section 2081 was adopted in 1997. (Stats.1997, ch. 567, § 2, pp. 3440-3441.) Fish and Game Code section 2081, subdivision (b) now permits the department to issue incidental take permits under specified circumstances. Such permits may be issued if the take is incidental to otherwise lawful activity.
Second, the term take is defined in Fish and Game Code section 86, ‘“Take’ means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” (See Rep. prepared for Sen. Com. on Natural Resources on Assem. Bill No. 3309 (1983-1984, Reg. Sess.) as amended Jun. 26, 1984, p. 4 [“For the purpose of these provisions, ‘take’ would be defined as the usual acts to hunt, pursue, catch, capture, or kill and would additionally embrace acts to harass, harm, shoot, wound, destroy, trap, or collect, which would conform to federal law.”].)
Third, ESA provisions however, allow alive trapping and transplantation carried out for purposes of conservation. The court recognized that the endangered species act reflects state policy to conserve and protect endangered species. (Fish & Game, Code § 2052.) State agencies are obligated to seek to conserve endangered species and further the purposes of the endangered species act. (Fish & Game, Code § 2058.) Conserving a species has as its goal the use of methods and procedures which are necessary to make a species no longer in need of the protections of the endangered species act. (Fish & G. Code, § 2061.) Among the legislatively approved conservation methods is the use of live trapping and transplantation. (Fish & G. Code, § 2061.)
Fourth, the endangered species act prohibits the taking of endangered species. Fish and Game Code section 2080 states in part, “No person shall . . . take . . . any species . . . that the commission determines to be an endangered species . . . , or attempt any of those acts, except as provided in this chapter . . . .” Nevertheless, the chapter allows live trapping and transportation to conserve species under section 2061. Therefore, the court was able to conclude that an approved conservation action to herd and transplant the stickleback is exempt and not a take of species.
ESA and CEQA are Conjoined and The Mitigation Measure Did Not Result in a Take
The appellate court summarized legislative history of the 1984 revisions to the ESA honing in on one important purpose of the new statutory language: to provide more careful deliberation during CEQA review, including the provision of greater protections for species through consultation and mitigation. The role of mitigation requirements imposed by the department is specifically discussed in Fish and Game Code section 2052.1.
The court concluded, “Thus, the endangered species act is tethered to the California Environmental Quality Act. We construe them together. (Baker v. Workers’ Comp. Appeals Bd. (2011) 52 Cal.4th 434, 446; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)”
Consequently, the ESA and CEQA are intended to work in tandem to identify impacts and employ mitigation protective of species. A legislatively sanctioned means of conservation is trapping and transplantation. Therefore, a well-crafted mitigation measure directing such conservation strategy is within the paradigm of both statutory schemes to protect and conserve species. The ESA specifies requirements for mitigation measures and in this case the department imposed extensive requirements on the developer. Because the court found that no take would occur, analysis of whether the EIR could have been lawfully certified without the incidental take permit was unnecessary.
CEQA Exhaustion Exemption Re Stickleback Take
The department and the developer argued that plaintiffs failed to exhaust their administrative remedies during the comment period as required by section 21177, subdivisions (a) and (b).
No plaintiff sufficiently directly raised any issue concerning whether a take was expected to occur which violated the endangered species act. However, the take issue was raised in a comment letter. An exception to the exhaustion of administrative remedies rule in the EIR preparation context arises when the issue is presented to the lead agency by a non-litigant. Here the take issue was raised by a Dr. Baskin, a non-litigant, during the comment period. Thus, the appellate court held it could now be asserted by plaintiffs (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 920; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1118-1121) and therefore was not forfeited.
Mortality is Not a Prerequisite to a Taking
One of the defendant’s arguments was that a take can only occur if an endangered species is killed. The court disagreed based on case law and statutory support. In Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at page 507, our Supreme Court explained: “Central to [endangered species act] is its prohibition on the taking of an endangered or threatened species. (Fish & G. Code, § 2080.) To ‘take’ in this context means to catch, capture or kill. (Fish & G. Code, § 86.)” (See Watershed Enforcers v. Department of Water Resources, supra, 185 Cal.App.4th at p. 974.) The court disagreed with the argument that a take must always involve mortality on the part of an endangered species, citing Fish and Game Code section 86, which uses the disjunctive, to describe a take; to “hunt, pursue, catch, capture, or kill” not merely mortality. Moreover, Fish and Game Code section 86 includes an attempt to “hunt, pursue, catch, capture, or kill” not merely completing any of the proscribed conduct. Thus, the court rejected the department’s position that a take can only occur when there is mortality.
The court also viewed the issue through the federal courts’ discussions of a take under the federal Endangered Species Act. “16 U.S.C. § 1532(19) defines ‘take’ as any action that, inter alia, ‘harms’ wildlife. While Congress did not define ‘harm,’ it explicitly intended the term ‘take’ to be construed broadly: ‘Take’ is to be ‘defined in the broadest possible manner to include every conceivable way in which a person can “take” or attempt to “take” any fish or wildlife.” S.Rep. No. 307, 93d Cong., 1st Sess. (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2995. [¶] It is clearly conceivable that one can inflict great harm on a protected species by creating an imminent threat of harm to that species and no mortality has occurred. In concluding, the court held that nothing in the judicial interpretation of the federal Endangered Species Act imposes the strict mortality requirement asserted by the department and the developer in the present case.
Mortality Will Not Result From the Proposed Mitigation Strategy
Acknowledging that mortality of a stickleback would be a taking and concluding that this was a “very close question” the court found that there was substantial evidence no death would occur given the extraordinary measures taken by the department to ensure the sticklebacks’ safety. The extensive mitigation measures coupled with expert’s findings, constituted substantial evidence that no deaths would result.
Ambiguity in Statutory Language Still Weighs in Favor of the Department’s Mitigation
The court considered subtle ambiguities arising in Fish and Game Code Sections 86 (definition of “take”); 5515 (prohibiting take or possession of fully protected species); and 2061 (live trapping and transportation techniques approved for conservation purposes). When the pertinent provisions of the Fish and Game and Public Resources Codes are construed together however, the appellate court concluded that no unlawful take would occur. This is largely an issue of statutory interpretation and construing all provisions of a statutes as a whole: “The statutory language is not read in isolation, however. Rather, we consider its terms ‘in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)” (Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175, 186.)
Fish and Game Code section 2052 expressly states it is this state’s policy to conserve endangered species, which includes “the use of, all methods or procedures” necessary to bring any endangered species to the point that it no longer needs protection. (Fish & G. Code, § 2061.) Among the methods and procedures which may be used to conserve a species are “live trapping” and “transplantation.” (Fish & G. Code, § 2061.) Further, “reasonable and prudent alternatives” shall be developed by the department and the project proponent which are consistent with conserving an endangered species. (Fish & G. Code, § 2053.) Fish and Game Code section 2055 expressly requires state agencies to “conserve endangered species” and utilize their authority to further the purposes of the endangered species act. Thus, because 2061 expressly permits the use of live trapping and transplantation if done for purposes of conservation and CESA intends for CEQA to take advantage of these options in mitigation measures, sections 86, 5515 and 2061 can thus be harmonized and the mitigation strategy is permissible.
E. Cultural Resources Analyses
The petition presented a challenge to the cultural resources analysis in the EIR, which plaintiffs claim was flawed in several respects. For example, it alleged the project area contains the Chumash and Tataviam Tribes’ ancestral home and: these tribal areas would be subject to excavation, earthmoving and other disturbance as a result of the project. Moreover, the earthmoving would have “devastating and irreversible impacts” on the historic, cultural and religious resources to the Tataviam and Chumash burial grounds and buried cultural artifacts.
As with other arguments raised in the petition, the developer and the department asserted that all Native-American cultural resources issues had been forfeited. They reasoned no Native-American cultural resources issues had been raised within the applicable comment periods. The trial court agreed in part with plaintiffs’ contentions. Nevertheless, the trial court ruled the EIR’s assessment of the project’s impact on Native-American cultural resources was not supported by substantial evidence, there were inadequate studies, and the developer’s consultants’ archaeological exhumations were inaccurate, incomplete and partial. The court questioned the reliability of the developer’s consultants’ conclusions and found the cultural impact mitigation measures were insufficient.
The appellate court agreed that all Native American issues were forfeited and not preserved for presentation in the mandate petition. Section 21117, subdivision (a) states, “An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” The exact issue raised in a mandate petition must have been presented to the lead agency during the comment period. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535-536.) In order for the comments to preserve the right to utilize an EIR, they must be raised during the comment period. The lead agency, although it has the discretion to do so, is not obligated to respond to untimely comments. (§ 21091, subd. (d)(1); Guidelines, § 15088, subd. (a); Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1110.) Court of Appeal authority holds a failure to exhaust administrative remedies contention is reviewed de novo. (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 535; Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.)
The record showed that the correspondence referred to by plaintiffs regarding the issues, was not provided until a year after the comment period closed. Consequently, none of the Native-American cultural resources issues which served as the basis for the writ of mandate was preserved during the comment period. Moreover, the appellate court concluded that there was no merit to plaintiffs’ argument that otherwise generalized criticisms regarding the draft EIR were sufficient to preserve the issues relied upon by the trial court.
Merits of Plaintiffs’ Claims
Nevertheless, the appellate court chose to examine and rule on the merits of the plaintiffs’ cultural resources claims. Even on the merits, however, none of plaintiffs’ contentions served as a basis for disapproving the EIR because of its alleged failure to adequately address issues relating to Native-American cultural resources. The appellate court’s rationale follows.
First, the department’s cultural impact analysis was supported by substantial evidence. The extensive intensive onsite survey was consistent with that recommended by the United States Department of the Interior. (48 Fed. Reg. 44716, 44722 (Sep. 29, 1983).) There was no requirement additional research be conducted before certifying the EIR. (see Association of Irritated Residents v. County of Madera (2003) 167 Cal.App.4th 1383, 1396; Gray v. County of Madera, supra, 167 Cal.App.4th at p. 1125.) Second, there was insufficient evidence to support the allegation that the surveys failed to uncover burial grounds. Third, during the extended comment period provided for by federal law, documentation was provided concerning past Native-American occupancy of the project site. Fifth, the mitigation measures discussed in the EIR comply with Guidelines section 15126.4, subdivision (b)(3)(A). Guidelines section 15126.4, subdivision (b)(3) states in part: “Public agencies should, whenever feasible, seek to avoid damaging effects on any historical resource of an archaeological nature. The following factors shall be considered and discussed in an [environmental impact] report for a project involving such an archaeological site: [¶] (A) Preservation in place is the preferred manner of mitigating impacts to archaeological sites. Preservation in place maintains the relationship between artifacts and the archaeological context. Preservation may also avoid conflict with religious or cultural values of groups associated with the site. [¶] (B) Preservation in place may be accomplished by, but is not limited to, the following: [¶] 1. Planning construction to avoid archaeological sites; [¶] 2. Incorporation of sites within parks, greenspace, or other open space; [¶] 3. Covering the archaeological sites with a layer of chemically stable soil before building tennis courts, parking lots, or similar facilities on the site; [¶] 4. Deeding the site into a permanent conservation easement.” (See California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 279-280.) The court unequivocally concluded that the EIR provided for appropriate mitigation under these standards. For example, the mitigation plan bars development and preserves existing archaeological sites and adds 00-foot buffers around protected sites. Proposed road construction activities are to avoid the protected sites and the buffer area. Finally, the EIR and the specific plan provided contingency strategies if construction unexpectedly intruded on protected site or the buffer zone and required consultation with the Tataviam community; in the event of the discovery of any cultural resources or the discovery of any human remains.
Plaintiffs also faulted a 1994 consultants’ report because it erroneously states that the Tataviam Tribe was extinct. This error was based on a scholarly source, and not the consultant’s findings and it was corrected. The error in the article was attributable not to the consultants, but to the article’s authors. Therefore, the court held that nothing in the citation to a scholarly article as occurred could serve as a basis for disapproving an EIR.
Once again the appellate court mined the administrative record which contained ample factual bases for the EIR findings on cultural resources. The trial court was reversed as there were no grounds to set aside the EIR certification.
F. The Specific Plan and Alternative 6
The mandate petition alleges: the EIR utilizes an impermissibly narrow set of alternatives; the EIR contains no substantial evidence “regarding the infeasibility of alternatives”; the EIR fails to evaluate “a genuine environmentally superior alternative that combines elements of Alternative 7 with a [conservation plan] and the absence of “a true environmentally superior alternative” prevents a meaningful consideration of project alternatives. The trial court agreed and also determined that the department unduly relied upon the county’s specific plan and failed to conduct an independent review of project impacts.
The department analyzed eight alternatives. Alternative 1 was the no-project alternative and the seven additional alternatives permitted development in the project area. In its findings and overriding considerations statement, the department found that Alternative 6 was infeasible because it did not meet the project objectives and the costs rendered it infeasible.
Proper Reliance on Specific Plan
One key issue was whether there was improper reliance upon the specific plan. The appellate court explained that department was authorized by Guidelines section 15126.6, subdivision (f)(1) to consider an extant specific plan in assessing infeasibility. More to the point, all development, including the assessment of alternatives in an EIR, must proceed in a fashion consistent with the specific plan. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at pp. 570-573; see A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 644-645.) Further an EIR must identify and assess whether a proposed alternative is infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.) Among the factors an agency must consider is the economic feasibility of a project alternative and consistency with a specific plan. (Guidelines, § 15126.6, subd. (f)(1); The Flanders Foundation v. City of Carmel-by-the-Sea, supra, 202 Cal.App.4th at p. 622-623.) Therefore, contrary to the trial court’s conclusion, the appellate court opined that reliance on the specific plan was consistent with the law.
Infeasibility Finding on Alternative 6
An EIR must describe alternatives to the proposed project. (§ 21100, subd. (b)(4); Guidelines, § 15126.6, subds. (a)-(d). Additionally, the EIR must identify and assess whether a proposed alternative is infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.) Among the factors an agency must consider is the economic feasibility. In assessing economic infeasibility, an agency must determine the following, “[W]hether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 600.
The court reviewed the infeasibility finding for substantial evidence and once again reversed the trial court, concluding that substantial evidence supported the department’s economic infeasibility finding as to Alternative 6. The court noted that the department determined in assessing the costs of the project to use a standard industry metric such as cost per developable acre. Like the cost metrics endorsed by the courts in Friends of the Earth [v. Hintz (9th Cir. 1986) 800 F.2d 822, 831-834] and Sierra Club v. Flowers [(S.D. Fla. 2006) 423 F.Supp.2d 1273, 1333], cost per developable acre is an objective measure that is not tied to any subjective or unique characteristic of the applicant. . . . Cost per net developable acre is based on verifiable information that is neither proprietary nor applicant-specific. In addition, it allows a direct and meaningful comparison of the relative costs associated with alternatives of different sizes or different amounts of development potential, in a way that the total project cost does not. Therefore, this was an appropriate metric.
The record included detailed calculations concluding that there would be a 15% cost increase per net developable acre, which was deemed a high cost for the proposed project. Therefore, the court concluded that the department quite reasonably could reject Alternative 6 as economically infeasible because of its substantially increased costs.
Additionally, the court confirmed that substantial evidence supported the department’s finding that Alternative 6 was infeasible because it did not meet the project’s objectives. The department identified the project’s basic objectives, based upon the specific plan. These objectives included commercial development in a specified area that would have been eliminated under Alternative 6, leading to a loss of 3.4 million square feet of commercial use. Moreover, Alternative 6 would only allow for “partial buildout” of the specific plan area. The material reduction in development between Alternatives 2 and 6 increased per residence costs and reduced tax base. Finally, loss of the Commerce Center Drive bridge by itself caused Alternative 6 to fail to meet the specific plan objective of creating interrelated villages. In sum, the record supported the findings of infeasibility. The court ultimately concluded that nothing that occurred during the department’s evaluation of project alternatives warranted a setting aside of the EIR.
G. The EIR’s Steelhead Smolt and Water Quality Analysis not Deficient
The mandate petition asserted that the EIR was deficient in analyzing the impacts of runoff from the Santa Clara River because it failed to consider whether the dissolved copper discharged from the project area would adversely affect restored habitat for endangered steelhead smolt, and it failed to provide measures to mitigate those impacts to a less than significant effect.
The entire sub-lethal copper discharge/steelhead smolt issue was forfeited because it was not raised during the comment period for the EIR. Section 21177, subdivision (a) bars consideration of that issue unless it raised it during the public comment period or prior to the close of the public hearing on the project. As previously discussed, the exact issue raised in a mandate petition must have been presented to the lead agency during the comment period. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 623; Sierra Club v. City of Orange, supra, 163 Cal.App.4th at pp. 535-536.) The issue concerning the steelhead smolt was not raised until almost one year after the comment period closed and the court concluded that it was forfeited.
Merits of Plaintiffs’ Claims
Not wanting to punt a potential environmental concern however, the court dutifully examined the issue. The court concluded, even if the issue had been preserved, there was substantial evidence that the project’s impacts on the steelhead smolt would be less than significant for two related reasons. First, the EIR describes the Santa Clara River and the so-called “dry gap”, an area where the river goes underground. It explained that all of the steelhead smolt’s habitat was below the dry gap, an area that would not be affected by potential copper runoff issues. Second, in the water quality discussion in the EIR, department scientists analyzed copper runoff in light of the California Toxics Rule criteria and concluded: “With the implementation of regulatory requirements, Mitigation Measures SP-4.2-7 and WQ-1, comprehensive [project design features], including site design, source control [best management practices], treatment [best management practices], and the comparison with instream water quality monitoring data and benchmark water quality criteria, Specific Plan build-out would not have significant water quality impacts resulting from trace metals under Significance Criteria 1 through 3.”
Buttoning up the allegation, the court held that the location of the species’ habitat, coupled with the discussion concerning water quality and conclusions that copper levels would be below the California Toxics Rule threshold, supports the department’s finding that project build out would not produce significant environmental impacts. In sum, there was substantial evidence that project impacts on steelhead smolt would be less than significant.
H. Spineflower Incidental Take and Mitigation- Supported by Substantial Evidence
The San Fernando Spineflower (spineflower) is listed as an endangered species under the CESA. The department’s approved conservation plan permanently expanded the existing spineflower preserve system. The spineflower is also identified as a candidate species under the federal Endangered Species Act of 1973. (16 U.S.C. § 1531 et seq.; Pub. L. No. 93-205 (Dec. 28, 1973) 87 Stat. 884.) The preserve system in the conservation plan was designed to maximize long-term persistence of the spineflower. In rendering its opinion, the court referred to the detailed discussion of the spineflower conservation plan in the EIR plus the department’s findings of fact and overriding considerations statement; the 290-page spineflower mitigation and monitoring plan; and the 300-page final conservation plan itself. The EIR explained that the spineflower was believed to be extinct until it was rediscovered in 1999 on property in Ventura County. Moreover, there are only two known locations where the spineflower can be found. One is nearby in Ventura County and the other in the project area, with each population approximately 17 miles apart.
The spineflower incidental take permit is a scientific opus consisting of 59 pages of analyses, charts, conditions and data. The permit sets forth milestones which are conditions of issuance and maintenance of the permit. The appellate court noted that the conservation plan is replete with descriptions of the biological goals and objectives of establishing the preserve areas; a species description; an analyses of 7 years of surveys, environmental setting and existing land use descriptions, methodology used to design the spineflower preserves, buffers, management activities designed to minimize or eliminate risk factors from development, adaptive management program and monitoring program to name a few. The scientific studies used as references in the preparation of the document were included in six technical appendices.
The Petition and the Ruling Based on Substantial Evidence Standard
The petition alleged that the EIR’s spineflower evaluation was defective, detailing scores of reasons. For example, the petitioners alleged that the evaluation underestimated the project’s impacts on the spineflower, and failed to evaluate the effect of permanently removing most of the spineflower’s seed bank from the project area on the viability of the proposed reserves; relied on unproven and ineffective mitigation measures, violated the endangered species act, failed to insure that the impacts of the spineflower incidental take permit were fully mitigated; failed to insure there was adequate funding to implement the conservation plan; the incidental take permit did not minimize or fully mitigate damage to other and department violated its duty to protect public trust resources. Finally, the petitioner argued that no substantial evidence supports the department’s findings that the impacts resulting from the take of spineflowers would be minimized and fully mitigated; the spineflower conservation measures were capable of successful implementation; and the issuance of the incidental take permit would not jeopardize the continued existence of “the covered species.” The trial court essentially agreed on most points.
However, the appellant court concluded to the contrary, once again employing the record to prove that there is substantial evidence that supports the department’s conclusion. The court noted that the conservation plan was the result of years’ long extensive, collaborative and scientific analysis by credentialed independent scientists and an array of department scientists. In addition, the developer’s consultant utilized 43 biologists in conducting surveys and scientific analyses and 21 surveys of the project area were conducted in order to identify the spineflower habitat. The conservation plan provided additional information concerning spineflower populations and the like, described varying factors which affect spineflower propagation including the absence of competing species depending on the direction the plot faces. One study relied on by the department was co-authored by 10 scientists with the California State University, Fullerton. “[T]here is every reason to believe that this plant can be restored in historic localities, and successfully managed onsite by a combination of methods that incorporate a knowledge of its biology.” To sum up, a plethora of studies consistently agreed that the conservation plan dramatically expanded the area for potential growth of the spineflower. The appellate court held that the foregoing constituted substantial evidence which supported the department’s scientific strategies and mitigation findings.
Substantial Evidence That Take Was Incidental to An Otherwise Lawful Activity
In addition, the foregoing constituted substantial evidence that the take was incidental to an otherwise lawful activity; the impacts of the spineflower take have been minimized and fully mitigated; the spineflower mitigation requirements are capable of successful implementation; the incidental take permit is consistent with the provisions of California Code of Regulations, title 14, section 783.0 et seq.; and there is adequate funding to support the spineflower mitigation measures. (Fish & G. Code, § 2081, subd. (b)(1)-4).) In addition, the court was clear that there was substantial evidence that the incidental take permit would not jeopardize the spineflower’s continued existence; the department used the best scientific and other information reasonably available to determine that the spineflower’s continued existence would not be jeopardized; and the department utilized such information to evaluate the adverse impacts of the taking on the spineflower species ability to survive in light of population trends, other threats and further reasonably foreseeable impacts. (Fish & G. Code, § 2081, subd. (c).)
Other Allegations Regarding Spineflower
Plaintiffs’ other arguments and the court’s ruling fell into five general areas. First, plaintiffs argued the department admitted it had little knowledge of the spineflower. The appellate court found however, that the department acted with candor in evaluating the difficulties of protecting an endangered species. This is particularly true in that only one other place in the world, in Ventura County, is there a viable spineflower population. The department’s conclusions in this regard were buttressed by extensive scientific and academic research. Second, plaintiffs relied on views expressed by Ms. Myers, a department scientist, concerning earlier versions of the conservation plan. Third, most of plaintiffs’ analysis required the appellate court to reweigh conflicting conclusions offered by Ms. Myers and others rather than engage in deferential substantial evidence review. Fourth, contrary to plaintiffs’ allegations the department’s comprehensive monitoring plan did not amount to deferring appropriate environmental actions. A conservation plan that adapts to changing scientific knowledge does not necessarily violate the endangered species act. Under these circumstances, the requirement that future research be conducted concerning the spineflower was not viewed by the appellate court as deferring an environmental decision–it is sound ecological management. Fifth, there was no requirement that a separate habitat conservation plan be prepared.
The court acknowledged that an extraordinary amount of scientific inquiry preceded the issuance of the EIR and incidental take permit. Under these circumstances, no obligation to prepare a separate habitat analysis existed under either the CESA or CEQA. The legal issue before the court was again, whether substantial evidence supported the department’s conclusions, and the appellate court succinctly concluded that there was such evidence.
The Petition and Ruling Based on the Abuse of Discretion Standard
Insofar as plaintiffs contend the incidental take permit should not have been issued (as distinguished from an attack on the EIR), the court was clarion that such a challenge was without merit. The applicable standard of review of an agency regulatory decision such as issuance of an incidental take permit is one of abuse of discretion. ‘“Abuse of discretion is established if the respondent [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” [Citations.]’ (Sierra Club v. State Bd. of Forestry[, supra,] 7 Cal.4th [at p.] 1236.)” (Environmental Protection Information Center v. California Dept. of Forestry And Fire Protection, supra, 44 Cal.4th at pp. 478-479.) The court briefly concluded that all of the foregoing analysis as it relates to the EIR applied equally to the issuance of the incidental take permit. In sum, no abuse of discretion occurred as to issuance of the incidental take permit.
Diane G. Kindermann Henderson is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.
 Section 21177, subdivisions (a) and (b) state: “(a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination pursuant to Sections 21108 and 21152.”