California Farm Bureau Federation v. Wcb

• Decision Date: 21 September 2006
• Docket Number: No. C049919.,C049919.
• Citation: 49 Cal.Rptr.3d 169,143 Cal.App.4th 173
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA FARM BUREAU FEDERATION et al., Plaintiffs and Respondents, v. CALIFORNIA WILDLIFE CONSERVATION BOARD et al., Defendants and Appellants; Leroy V. Traynham et al., Real Parties in Interest and Respondents; Richard J. Mora, Intervener and Respondent. County of Colusa, Plaintiff and Respondent, v. California Wildlife Conservation Board et al., Defendants and Appellants; Leroy V. Traynham et al., Real Parties in Interest and Respondents; California Farm Bureau Federation et al., Interveners and Respondents.

49 Cal.Rptr.3d 169

143 Cal.App.4th 173

CALIFORNIA FARM BUREAU FEDERATION et al., Plaintiffs and Respondents, v. CALIFORNIA WILDLIFE CONSERVATION BOARD et al., Defendants and Appellants;

Leroy V. Traynham et al., Real Parties in Interest and Respondents;

Richard J. Mora, Intervener and Respondent.

County of Colusa, Plaintiff and Respondent, v. California Wildlife Conservation Board et al., Defendants and Appellants;

Leroy V. Traynham et al., Real Parties in Interest and Respondents;

California Farm Bureau Federation et al., Interveners and Respondents.

No. C049919.

Court of Appeal, Third District.

September 21, 2006.

Certified for Partial Publication.^*

Bill Lockyer, Attorney General, Mary Hackenbracht, Senior Assistant Attorney General, Deborah A. Wordham, Deputy Attorney General for Defendants and Appellants California Wildlife Conservation Board and Department of Fish and Game.

Gibson, Dunn & Crutcher and Alan N. Bick, Irvine, and Christeon J. Costanzo for Plaintiff, Intervener and Respondent California Farm Bureau Federation.

Brenda Washington Davis, John R. Weech, Ronda Azevedo Lucas for Plaintiffs, Interveners and Respondents California Farm Bureau Federation and Richard J. Mora.

Somach, Simmons & Dunn and Timothy M. Taylor, Kristen T. Castanos and Jacqueline L. McDonald, Sacramento, and Henry E. Rodegerdts, County Counsel for Plaintiff and Respondent County of Colusa.

No appearance for Real Party in Interest Leroy V. Traynham.

CANTIL-SAKAUYE, J.

This case addresses the California Wildlife Conservation Board's (WCB) approval of a project involving the conversion of agricultural land into wildlife habitat as categorically exempt from the California Environmental Quality Act (CEQA). The California Department of Fish and Game (DFG) and the WCB appeal the grant of a peremptory writ of mandate directing them inter alia to set aside the decision finding the Traynham Ranch project (Project) to be exempt from CEQA.¹ The DFG and WCB also appeal the award of attorney fees to the County of Colusa (County) and to petitioners California Farm Bureau Federation, Colusa County Farm Bureau (together the Farm Bureau) and intervenor Richard Mora. We shall affirm the trial court's grant of a peremptory writ of mandate and the orders granting attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, the DFG through the WCB (together the State Agencies) negotiated the purchase of a conservation easement on 235 acres of farmland (the property) owned by Leroy V. Traynham III (Traynham) in the County as the first acquisition/restoration project under the North Central Valley, Conservation Reserve Enhancement Program. WCB as the lead agency approved as part of the conservation easement a site specific Waterfowl Habitat Management Plan (Management Plan) which identified measures needed to convert the property from agriculture to habitat. The project consisted of both the conservation easement and the management plan.

The property is adjacent to an existing riparian/wetland project in the Lower Colusa Trough and would expand a nearly contiguous 2,700-acre corridor of wetlands and riparian habitat along the Ridge Cut Slough that has been restored in recent years.

The property is located in the "General Agriculture" land use designation of the County's General Plan and is zoned "Exclusive Agriculture." The property is located within the boundaries of an agricultural preserve and is designated on the Important Farmland Series maps, pursuant to Government Code section 65570, as one or more of the following: Prime farmland, farmland of statewide significance, unique farmland, and/or farmland of local importance. The property had been part of a Williamson Act Contract with the County (Gov.Code, § 51200 et seq.) and at the time of the easement purchase by the State Agencies it was covered by a Farmland Security Zone Contract (Super Williamson Act Contract) with the County. (Gov.Code, § 51296 et seq.)² Under this Super Williamson Act Contract Traynham had agreed to restrict the use of the property to production of food and fiber for commercial purposes and compatible uses. The property had been planted with row crops and rice and was planted with Sudan grass at the time of the appraisal for the easement purchase by the State Agencies.³

The State Agencies provided a project description of the acquisition of the conservation easement as requiring "approximately 225 acres of leveled agricultural fields to be restored to a mixture of seasonal and semi-permanent wetlands, grasslands, and forested wetlands." The conservation easement specifically precluded the cultivation of agricultural crops for commercial gain on the easement lands as a use inconsistent with the easement.

The conservation easement incorporated the management plan designed for the property and made part of the easement covenants. Such management plan required the "conversion" of the property from agricultural fields to wetlands. According to the management plan this would require: "1) re-constructing existing permanent levees in a meandering fashion such that all interior and exterior levees are 3 feet high and contain at least 5:1 side slopes (except where a levee borders a ditch, in which case the slope on the ditch side shall be 2:1, 2) constructing permanent interior levees (maximum 3 feet high, minimum 5:1 side slopes) to replace small rice dikes such that permanent interior levees are present at maximum intervals of every 12" of elevational drop within each field, 3) developing or improving ditches as necessary to facilitate independent flooding and drainage of wetland units, 4) installing `flashboard riser' water control structures (18-24" diameter pipe, 36-48" spill width) to allow the timely flooding/drainage of wetland units and precise control of wetland water depths, 5) constructing channels or `swales' (30-80 feet wide, 12-24" of excavation) that meander from the inlet to outlet structures, utilizing the resultant spoil to restore variable pond bottom topography by constructing underwater berms and hummocks, 6) developing small linear `loafing bars' (20-60 feet long, 10-30 feet wide, minimum 5:1 side slopes, 0-12" above the water level) and possibly some higher mounds for duck blinds, 7) planting isolated clumps of hardstem bulrush (tules) throughout the wetland area, [and] 8) planting native willows and cottonwoods in areas that can be irrigated for the first two years." The cost for the project, not including the cost of the conservation easement itself, was estimated at $111,140.

The project would result in approximately 145 acres of wetlands and 80 acres of uplands. Some of the wetlands would be seasonal wetlands, but at least 15 acres would be semi-permanent wetlands brood ponds, which would be flooded continuously during the spring and summer from at least March 15 through July 15.

The California Waterfowl Association (CWA) received a grant to fund the construction work. CWA submitted a work plan for the project which listed the following specific work to be done: "1) An existing 40 hp pump will be refurbished. 2) A 1500 ft pipeline will be installed to irrigate the southern upland field. 3) Levees will be refurbished or constructed and flashboard risers will be installed to control the application and management of water. 4) A catch basin will be constructed to take advantage of free water from the agricultural drainage ditch. 5) Approximately 15 acres of brood ponds will be constructed . . . . An irrigation swale will be cut from the pump, around the interior upland field and into the catch basin . . . . 6) Swales will be cut throughout the wetland units from inlet to outlet to facilitate water delivery and drainage. Excavated soil from the swales will be used to construct levees and diversify pond bottom topography. In addition to swales, ponds will be cut into the fields, varying in depth from 3 feet to 6 inches with an average of 12-18 inches in depth. 7) Tules, cottonwood trees and willow trees will be planted to restore native vegetation. 8) Small berms will be constructed in the southern upland field to facilitate irrigation. All uplands will be planted with a grass/vetch mix to establish dense nesting cover for locally nesting waterfowl, songbirds, and pheasants."

The DFG recommended the WCB approve the project. The DFG took the position the acquisition of the conservation easement was exempt from CEQA under Class 13 of the Guidelines' categorical exemptions for acquisitions for wildlife conservation purposes and the restoration efforts were exempt from CEQA under Class 4 of the Guidelines' categorical exemptions for minor alterations of land to benefit fish and wildlife. The WCB approved the project on February 27, 2002, and on March 1, 2002, filed a notice of exemption asserting the project was exempt from CEQA under Class 13.

The Farm Bureau filed a petition in the trial court against the State Agencies seeking a writ of mandate and injunctive relief alleging violations of CEQA and the Williamson Act. The County, Traynham, and the CWA were named as real parties in interest. Richard Mora, an individual agricultural landowner in the County, was allowed to file a complaint in intervention similarly alleging violations of the Williamson Act and joining in the Farm Bureau's demand for relief under CEQA.⁴ The County filed a cross-petition and cross-complaint against the State Agencies and Traynham alleging violations of the Williamson Act and failure to comply with County codes and ordinances. The trial court granted a preliminary injunction and stay against the State Agencies, Traynham, and the CWA. The trial court ordered the County's action bifurcated and stayed pending resolution of the Farm Bureau's petition.

After the State Agencies and Traynham amended the conservation easement to allow some commercial grazing of livestock on the property, the County dismissed its causes of action for violations of the Williamson Act, but...