Center for Biological Diversity v. Department of Fish & Wildlife
234 Cal. App. 4th 214
Cal. Ct. App.2015Background
- California Dept. of Fish and Wildlife (Department) operates a century-old, statutorily mandated hatchery-and-stocking program (≈1,000 waters; 24 hatcheries) and prepared a statewide program EIR/EIS (certified Jan 2010) to analyze environmental impacts.
- Scientific concerns (amphibian declines in high mountain lakes; genetic and ecological harm to wild salmonids) led the Department to survey thousands of sites and to develop site- and species-based protocols (pre-stocking evaluation protocol, aquatic biodiversity management plans, hatchery genetic management plans) to guide future site approvals and mitigation.
- The EIR treated the existing 2004–2008 operations as the environmental baseline and analyzed three alternatives: (1) continue existing operations (treated as "no project"), (2) continue with EIR mitigation measures (preferred), and (3) continue under interim court restrictions (no stocking where decision species exist).
- The EIR imposed mitigation measures affecting Department programs and private vendors (e.g., evaluation protocols, quarterly invasive-species monitoring/reporting for vendors, permit-denial rules where decision species would be harmed).
- Plaintiffs (Center for Biological Diversity; Californians for Alternatives to Toxics; California Association for Recreational Fishing) sued: CEQA challenges to the EIR (site‑specific review, deferred mitigation, baseline, alternatives) and an APA challenge asserting certain mitigation measures function as unauthorized regulations imposed on private vendors.
- The trial court denied writs; on appeal the Court of Appeal (Third Dist.) affirmed CEQA rulings in part and reversed on the APA/regulatory issue affecting vendor-related measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of program EIR vs. site‑specific EIR | Center: Program EIR is insufficient; must do site‑specific CEQA review for each stocked water body. | Dept.: Program EIR appropriate given statewide, recurring program and rule of reason; site review occurs later via evaluation protocols. | Program EIR adequate; EIR was sufficiently comprehensive and contemplates site‑level checks; no abuse of discretion. |
| Deferred mitigation (aquatic biodiversity and hatchery genetic plans) | Center: EIR impermissibly defers formulation of mitigation to future plans without specific performance standards. | Dept.: EIR includes binding performance standards/objectives and conditions (e.g., no stocking where decision species would be harmed; compliance with federal hatchery genetic plan regs). | No improper deferral: EIR sets performance criteria and conditions that bind Dept. before stocking resumes; hatchery genetic plan requirement supplies adequate standards. |
| Environmental baseline selection | Center: Baseline should be existing environment absent the project; using ongoing operations masks historic impacts. | Dept.: For continuing/statutorily mandated program, baseline properly includes current operations; cannot legally implement a no‑stocking baseline. | Using current operations as baseline is proper for a continuing project; precedent supports including existing (even pre‑CEQA) conditions. |
| Alternatives / no‑project alternative | Center: EIR failed to consider a true no‑stocking alternative and an adequate range of alternatives. | Dept.: A no‑stocking alternative is infeasible (statutory mandate); EIR reasonably considered feasible alternatives and superior mitigations. | Held: EIR satisfied CEQA—no‑stocking was infeasible; range of alternatives was reasonable and adequately explained. |
| Whether vendor-directed mitigation measures are regulations under APA | Association: Measures (vendor monitoring/reporting, evaluation protocols, permit denial criteria) are regulations adopted without APA notice/hearing. | Dept.: Measures are internal management or merely interpret existing law (thus exempt from APA). | Two measures (quarterly vendor monitoring/reporting and vendor‑affecting evaluation/permit criteria) go beyond internal management or a "only tenable" statutory interpretation; they are underground regulations and must be adopted under APA procedures. |
Key Cases Cited
- Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412 (Cal. 2007) (standards for appellate review of CEQA matters and program/project specificity)
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (Cal. 2010) (baseline should reflect actual environmental conditions at time of analysis)
- Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency, 82 Cal.App.4th 511 (Cal. Ct. App. 2000) (limits on program EIR specificity where many discrete projects require analysis)
- East Shore Parks v. California State Lands Com., 202 Cal.App.4th 549 (Cal. Ct. App. 2011) (continuing operations may be included in CEQA baseline even if predating CEQA)
- Rialto Citizens for Responsible Growth v. City of Rialto, 208 Cal.App.4th 899 (Cal. Ct. App. 2012) (deferred mitigation permissible when EIR sets clear performance criteria)
- Preserve Wild Santee v. City of Santee, 210 Cal.App.4th 260 (Cal. Ct. App. 2012) (invalidating EIR for impermissible deferral where management plan lacked concrete standards)
- Morning Star Co. v. State Bd. of Equalization, 38 Cal.4th 324 (Cal. 2006) (APA rulemaking requirements and limits on "only legally tenable" exception)
- Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557 (Cal. 1996) (agency interpretations in adjudication vs. rulemaking)
- Bollay v. California Office of Administrative Law, 193 Cal.App.4th 103 (Cal. Ct. App. 2011) (scope of APA exceptions and underground regulation doctrine)