Center for Biological Diversity v. Department of Fish & Wildlife
1 Cal. App. 5th 452
| Cal. Ct. App. | 2016Background
- The California Department of Fish and Wildlife (the department) certified a joint EIS/EIR and approved the Newhall Ranch Resource Management and Development Plan, Spineflower Conservation Plan, streambed alteration agreement, and two incidental-take permits in December 2010. Plaintiffs (several environmental and Native American-interest organizations) sued via mandate petition challenging adequacy of the EIR and approvals.
- The trial court granted the petition in October 2012, finding multiple CEQA defects (greenhouse gas analysis, mitigation for unarmored threespine stickleback, dissolved copper impacts on steelhead smolt, Native American cultural‑resource analysis, spineflower mitigation, and reliance on the specific plan).
- The Court of Appeal initially reversed; the California Supreme Court granted review, issued an opinion, and remanded certain matters to the Court of Appeal for further direction (notably on greenhouse gas, cultural resources/steelhead timeliness, and writ parameters).
- On remand the Court of Appeal issued this partially published decision: it affirms some trial-court findings (BIO‑44/BIO‑46 violate Fish & Game Code §5515; insufficient evidence to support EIR’s no‑significant‑impact greenhouse‑gas conclusion), reverses others (selection of Health & Safety Code §38850 reduction goals as a significance criterion and use of business‑as‑usual baseline are permissible; sufficiency of cultural‑resource and dissolved‑copper analyses), and addresses whether the appellate court may itself issue and supervise a CEQA writ.
- The Court held that appellate courts deciding direct appeals do not have authority to issue and supervise the implementation of a mandate under Pub. Res. Code §21168.9; that supervisory role belongs to the trial court on remittitur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Greenhouse gas significance criterion | EIR's use of H&S §38850 goals and business‑as‑usual comparison improper; baseline must be existing environment | H&S §38850 and BAU comparison are permissible significance criteria | Court: H&S §38850 criterion and BAU comparison are permissible, but EIR lacked substantial evidence/reasoned explanation to support its "no significant impact" finding (affirmed reversal on insufficiency) |
| Mitigation measures BIO‑44 & BIO‑46 (unarmored threespine stickleback) | Measures enable prohibited take in violation of Fish & Game Code §5515 | Measures are adequate to avoid unlawful take | Court: Affirmed trial court — BIO‑44 and BIO‑46 violate §5515; those approvals must be set aside |
| Native American cultural resources (timeliness & adequacy of response to late comments) | Comments raised were timely (per Natl. NEPA practice) and EIR failed to adequately analyze/mitigate impacts | Department: comments untimely and EIR responses/mitigation adequate | Court: Supreme Court found the comments timely; on remand Court of Appeal finds department’s analyses and responses supported by substantial evidence — no CEQA reversal needed on merits |
| Dissolved copper impacts on steelhead smolt | EIR failed to analyze sublethal copper impacts downstream, esp. if dry gap is breached | EIR modeling, mitigation, and reliance on California Toxics Rule show post‑mitigation copper below toxicity thresholds; no suitable smolt habitat upstream of dry gap | Court: Reversed trial-court finding; substantial evidence supports EIR’s less‑than‑significant conclusion regarding copper and steelhead after mitigation |
| Scope of remand / authority to issue & supervise writ under §21168.9 | Plaintiffs: appellate court should remit to trial court to craft and supervise mandate and any injunctions | Developer & dept.: this Court should retain jurisdiction and supervise compliance (claiming §21168.9 authorizes appellate writs on remand) | Court: On direct appeal the Court of Appeal lacks authority to issue and supervise a CEQA writ under §21168.9; remittitur to trial court required and trial court retains jurisdiction to supervise compliance per §21168.9(b) |
Key Cases Cited
- Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (Cal. 2015) (Supreme Court opinion addressing greenhouse‑gas criteria, timeliness of NEPA/CEQA comments, and remand directions)
- Center for Biological Diversity v. Department of Fish & Wildlife, 224 Cal.App.4th 1105 (Cal. Ct. App.) (earlier Court of Appeal decision reversed in part by the Supreme Court)
- Laurel Heights Improvement Assn. v. Regents of Univ. of Cal., 47 Cal.3d 376 (Cal. 1988) (CEQA sufficiency standard: court reviews informational adequacy, not correctness of environmental conclusions)
- Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (Cal. 1990) (deference to agency on conflicting environmental evidence; court evaluates sufficiency of the EIR as an informative document)
- Western States Petroleum Assn. v. Superior Court, 9 Cal.4th 559 (Cal. 1995) (standard for reviewing agency environmental conclusions; courts do not reweigh competing evidence)