Ctr. for Biological Diversity v. Cal. Dep't of Fish & Wildlife

• Decision Date: 30 November 2015
• Docket Number: No. S217763.,S217763.
• Citation: 361 P.3d 342,195 Cal.Rptr.3d 247,62 Cal.4th 204
• Court: California Supreme Court
• Parties: CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant; The Newhall Land and Farming Company, Real Party in Interest.

62 Cal.4th 204

361 P.3d 342

195 Cal.Rptr.3d 247

CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents,

v. CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant;The Newhall Land and Farming Company, Real Party in Interest.

No. S217763.

Supreme Court of California

Nov. 30, 2015.

As Modified on Denial of Rehearing Feb. 17, 2016.^*

Wendy L. Bogdan, Thomas R. Gibson, John H. Mattox ; Thomas Law Group, Tina A. Thomas, Ashle T. Crocker, Amy R. Higuera and Meghan M. Dunnagan, for Defendant and Appellant.

Latham & Watkins, Christopher W. Garrett and Taiga Takahashi, San Diego, for California Chamber of Commerce as Amicus Curiae on behalf of Defendant and Appellant.

Holland & Knight, Jennifer L. Hernandez and Charles L. Coleman III, San Francisco, for San Joaquin Valley Air Pollution Control District and County of Kern as Amici Curiae on behalf of Defendant and Appellant.

Kathrine Pittard, for Sacramento Metropolitan Air Quality Management District as Amicus Curiae on behalf of Defendant and Appellant.

Nossaman, Robert D. Thornton, Irvine, Stephanie N. Clark; Best Best & Krieger, Steven C. DeBaun, Charity B. Schiller, Riverside; Stefanie D. Morris ; Marcia Scully, Los Angeles, Robert C. Horton ; Mark J. Saladino, County Counsel (Los Angeles), Charles M. Safer, Assistant County Counsel, Ronald W. Stamm, Principal Deputy County Counsel; and Amelia T. Minaberrigarai, for Foothill/Eastern Transportation Corridor Agency, San Joaquin Hills Transportation Corridor Agency, Kern County Water Agency, Metropolitan Water District of Southern California, Riverside County Transportation Commission, Los Angeles County Metropolitan Transportation Authority and State Water Contractors as Amici Curiae on behalf of Defendant and Appellant.

Cox, Castle & Nicholson, Michael H. Zischke, Andrew B. Sabey, Linda C. Klein and James M. Purvis, San Francisco, for California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry Association of the Bay Area, California Business Properties Association and California Association of Realtors as Amici Curiae on behalf of Defendant and Appellant.

Sidley Austin, Mark E. Haddad, Michelle B. Goodman, Wen W. Shen and David L. Anderson, Los Angeles, for Governors George Deukmejian, Pete Wilson and Gray Davis as Amici Curiae on behalf of Defendant and Appellant.

Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard, Escondido; Morrison & Foerster, Miriam A. Vogel, Los Angeles; Nielsen Merksamer Parinello Gross & Leoni, Arthur G. Scotland, Sacramento; Downey Brand and Patrick G. Mitchell, for Real Party in Interest and Appellant.

Poole & Shaffery, David S. Poole, John H. Shaffery and Samuel R.W. Price, Valencia, for Santa Clarita Valley Economic Development Corporation as Amicus Curiae on behalf of Defendant and Appellant and Real Party in Interest and Appellant.

John Buse, Kevin P. Bundy, Aruna Prabhala; Law Office of Adam Keats, Adam Keats, Joshua Tree; Jason A. Weiner ; Frank G. Wells Environmental Law Clinic, Sean B. Hecht, Los Angeles; Chatten–Brown and Carstens, Jan Chatten–Brown, Santa Monica, and Doug Carstens, for Plaintiffs and Respondents.

Courtney Ann Coyle, for the Karuk Tribe, the Kashia Band of Pomo Indians of Stewarts Point Rancheria, the Pala Band of Mission Indians, the Pechanga Band of Luiseño Indians, the Santa Ynez Band of Chumash Indians and the Tinoqui–Chaloa Council of Kitanemuk & Yowlumne Tejon Indians of the Former Sebastian Indian Reservation as Amici Curiae on behalf of Plaintiffs and Respondents.

Matthew Vespa, for Sierra Club as Amicus Curiae on behalf of Plaintiffs and Respondents.

Lucy H. Allen ; Austin Sutta and Sharon E. Duggan, San Francisco, for Environmental Protection Information Center, Audubon California and California Trout, Inc., as Amici Curiae on behalf of Plaintiffs and Respondents.

Christopher H. Calfee, for Governor's Office of Planning and Research and California Natural Resources Agency as Amici Curiae on behalf of Plaintiffs and Respondents.

Burke, Williams & Sorensen, Kevin D. Siegel and Stephen Velyvis, Oakland, for League of California Cities, California State Association of Counties, California Special Districts Association and Southern California Association of Governments as Amici Curiae.

Brandt–Hawley Law Group and Susan Brandt–Hawley, Glen Ellen, for Planning and Conservation League as Amicus Curiae.

WERDEGAR, J.

This case presents three issues regarding the adequacy of an environmental impact report for a large land development in northwest Los Angeles County, each issue arising under the California Environmental Quality Act (CEQA; Pub. Resources Code § 21000 et seq. ): (1) Does the environmental impact report validly determine the development would not significantly impact the environment by its discharge of greenhouse gases? (2) Are mitigation measures adopted for protection of a freshwater fish, the unarmored threespine stickleback, improper because they involve taking of the fish prohibited by the Fish and Game Code? (3) Were plaintiffs' comments on two other areas of disputed impact submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177 ?

We conclude, first, that as to greenhouse gas emissions the environmental impact report employs a legally permissible criterion of significance—whether the project was consistent with meeting statewide emission reduction goals—but the report's finding that the project's emissions would not be significant under that criterion is not supported by a reasoned explanation based on substantial evidence. Second, we conclude the report's mitigation measures calling for capture and relocation of the stickleback, a fully protected species under Fish and Game Code section 5515, subdivision (b)(9), themselves constitute a taking prohibited under subdivision (a) of the same statute. Finally, we hold that under the circumstances of this case plaintiffs exhausted their administrative remedies regarding certain claims of deficiency by raising them during an optional comment period on the final report.

I. FACTUAL AND PROCEDURAL BACKGROUND

The California Department of Fish and Wildlife (DFW, formerly the Department of Fish and Game) and the United States Army Corps of Engineers prepared a joint environmental impact statement/environmental impact report (the EIR)¹ for two natural resource plans (the "Resource Management and Development Plan" and the "Spineflower Conservation Plan") related to a proposed land development called Newhall Ranch. To be developed over about 20 years on almost 12,000 acres along the Santa Clara River west of the City of Santa Clarita, the proposed Newhall Ranch would consist of up to 20,885 dwelling units housing nearly 58,000 residents as well as commercial and business uses, schools, golf courses, parks and other community facilities. The project applicant and owner of Newhall Ranch is real party in interest the Newhall Land and Farming Company (Newhall).

Newhall Ranch's potential environmental impacts were previously studied by the County of Los Angeles in connection with the county's 2003 approval of a land use plan for the proposed development; the present EIR draws on but is independent of the environmental documentation for that approval. DFW acted as the lead state agency in preparing the EIR because the project (i.e., the Resource Management and Development Plan and the Spineflower Conservation Plan) called for DFW's concurrence in a streambed alteration agreement and issuance of incidental take permits for protected species. Although DFW has direct authority only over biological resource impacts from the project, the agency attempts in the EIR to evaluate all environmental impacts from the project and the Newhall Ranch development that would be facilitated by project approval.

DFW and the United States Army Corps of Engineers (the Corps), the lead federal agency, issued a draft EIR in April 2009 and a final EIR in June 2010. In December 2010, DFW certified the EIR, made the findings required by CEQA as to significant impacts, mitigation, alternatives and overriding considerations, and approved the project. Of relevance here, DFW found that the project could significantly impact the unarmored threespine stickleback but that adopted mitigation measures would avoid or substantially lessen that impact, and that "taking into account the applicant's design commitments and existing regulatory standards," Newhall Ranch's emissions of greenhouse gases would have a less than significant impact on the global climate.

Plaintiffs challenged DFW's actions by a petition for writ of mandate.² The superior court granted the petition on several grounds. The Court of Appeal reversed, rejecting all of plaintiffs' CEQA claims. We granted plaintiffs' petition for review.

II. DISCUSSION

The general principles governing our review of DFW's actions can be simply stated. In reviewing an agency's nonadjudicative determination or decision for compliance with CEQA, we ask whether the agency has prejudicially abused its discretion; such an abuse 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." (Pub. Resources Code § 21168.5.)³ In determining whether there has been an abuse of discretion, we review the agency's action, not the trial court's decision. " [I]n that sense appellate judicial review under CEQA is de novo." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427, 53 Cal.Rptr.3d 821, 150 P.3d 709 (Vineyard Area Citizens ).)

On particular questions of CEQA compliance, however, the standard of review depends on "whether the claim is predominantly one of improper procedure or a dispute over the facts." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435, 53 Cal.Rptr.3d 821, 150 P.3d 709.) "While we determine de novo whether the agency has...