By William W. Abbott
Center for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal.App.4th 214.
For over 100 years, the State of California has operated fish hatcheries. In the last twenty years, concerns have developed over the potential impacts of stocked fish on native and wild animals. Evidence suggested that amphibians in high altitude lakes were particularly vulnerable. Beginning in 2001, the then Department of Fish and Game begin performing surveys of high altitude lakes, completing over 16,000 surveys. The surveys formed the basis of management plans for 27 watershed areas. The Department also began working on hatchery genetic management plans, a planning tool under the Federal Endangered Species Act of 1973. (As of January 2010, none of these plans had been adopted.) In 2006, the Center for Biological Diversity (CBD) filed suit, claiming that the hatchery and stocking efforts were not exempt from CEQA review. In 2007, the court granted the writ of mandate compelling CEQA compliance, but did not suspend the hatchery and restocking program. The Department did not appeal, and proceeded with an EIR. In 2008, the Department moved to extend the deadline to complete the EIR, based in part that program funding was in part federal, and that the EIR would be combined with an EIS. In early 2010, the Department certified a program EIR, covering not only the state’s hatchery and stocking program, but Fishing in the City, Aquarium Education Project and fish stocking practices by private stocking companies working in private and public water. The EIR concluded that there were impacts to amphibians, and developed a new protocol requiring pre-stocking surveys. Based upon an evaluation by a biologist, if potential impacts could occur then no stocking could take place until the Department developed and implemented an aquatic biodiversity management plan. If no impacts were anticipated, then stocking could proceed, a decision valid for five years. The EIRs analysis was based upon a baseline of 2004-2008, which included hatchery and stocking practices. As mitigation for impacts to wild salmon and steelhead populations, the Department committed to the hatchery genetic management plans, including federal approval. Additional mitigation measures were developed and applied to private stocking permit operators.
CBD and aligned interests challenged the sufficiency of the EIR. The private stocking interests filed a separate challenge, arguing that the mitigation measures applicable to private stocking were invalid to the extent that the requirements had been improperly adopted as underground regulations in violation of the State’s Administrative Procedures Act. The trial court denied both petitions and the appeals followed.
On appeal, the EIR challenge focused on four claims: use of a programmatic EIR; deferred mitigation; use of existing stocking activities as part of the baseline; and failure to consider a reasonable range of alternatives. As to the programmatic EIR claim, the court discussed at great length the analysis contained in the EIR. CBD argued that the EIR was required to look at each individual waterbody subject to stocking. Not so, according to the court of appeal. This EIR was sufficiently comprehensive in identifying how the Department would proceed that it was unlikely that site specific impact analysis will reveal any unanticipated impacts. Turning next to the claim of deferred mitigation, the appellate court rejected both of CBD’s assertions. First, the Department set a performance standard of no impacts to the high mountain lakes. Second, as to the impact mitigation to salmon and steelhead species, the Department held itself to compliance with government federal regulations. These approaches comported with existing case law regarding the use of performance standards. CBD also challenged the EIR’s baseline, arguing that the existing hatchery and stocking programs should not be part the baseline. Similar to the fact pattern in Citizens for East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549, the Department’s activities were part of the existing physical conditions, and were appropriately used as part of the baseline conditions. The final challenge dealt with the range of reasonable alternatives, and CBD asserted that the Department was obligated to look at a no-hatchery no-stocking alternative. This programmatic EIR looked at three alternatives: (1) the no project alternative (existing hatchery and restocking practices); (2) the proposed project with the mitigation measures; and (3) carrying forward activities consistent with the trial court order which restricted restocking where key species existed. In selecting alternatives, the Department was guided by legislative directives which included providing fishing alternatives. Two alternatives provided environmental benefits compared to continuation of existing activities and were sufficient.
The court then addressed the issue of underground regulations in the CEQA context, a previously unexplored issue. Three mitigation measures were at issue. The first mitigation measure went beyond dealing with just internal Departmental affairs, but affected how the Department would operate its program and affected a large segment of the public. As to regulations affecting private stocking parties, the two disputed mitigation measure did more than just strictly implement the statute. Accordingly, the appellate court concluded that all three measures were required to be adopted by following the procedures specified by the state Administrative Procedures Act.
William W. Abbott 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.