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

• Decision Date: 11 July 2016
• Docket Number: B245131
• Citation: 1 Cal.App.5th 452,204 Cal.Rptr.3d 663
• Court: California Court of Appeals Court of Appeals
• Parties: CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents, v. DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant; The Newhall Land and Farming Company, Real Party in Interest and Appellant.

1 Cal.App.5th 452

204 Cal.Rptr.3d 663

CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents

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

B245131

Court of Appeal, Second District, Division 5, California.

Filed and Rehearing Denied on July 11, 2016

Certified for Partial Publication.^*

Office of the General Counsel, Thomas R. Gibson, General Counsel, Wendy L. Bogdan, General Counsel and John H. Mattox, Senior Staff Counsel; Thomas Law Group, Tina A. Thomas, Ashle T. Crocker and Amy R. Higuera, for Defendant and Appellant California Department of Fish and Game.

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

John Buse and Adam Keats, Joshua Tree; Chatten–Brown and Carstens, Jan Chatten–Brown and Doug Carstens, Santa Monica, for Plaintiffs and Respondents Center for Biological Diversity, Friends of the Sara Clara River, Santa Clarita Organization for Planning and the Environment, and California Native Plant Society.

Jason Weiner; Chatten–Brown and Carstens, Jan Chatten–Brown and Doug Carstens, Santa Monica, for Plaintiffs and Respondents Wishtoyo Foundation/Ventura Coastkeeper.

TURNER

, P.J.

I. INTRODUCTION

Defendant, California Department of Fish and Wildlife (the department), and real party in interest, The Newhall Land and Farming Company (the developer), appeal from a judgment granting a mandate petition. The judgment, entered October 15, 2012, was granted in favor of plaintiffs: Center for Biological Diversity; Friends of the Santa Clara River; Santa Clarita Organization for Planning the Environment; Wishtoyo Foundation/Ventura Coastkeeper; and California Native Plant Society. The litigation and appeal arise from the department's December 3, 2010: certification of the revised final environmental impact statement and impact report; approval of the Newhall Ranch Resource Management and Development Plan (resource management and development plan); the adoption of the Spineflower Conservation Plan and Master Streambed Alteration Agreement (streambed alteration agreement); and issuance of two incidental take permits. We issued an opinion reversing the October 15, 2012 judgment. (

Center for Biological Diversity v. Department of Fish and Wildlife (2014) 224 Cal.App.4th 1105, 169 Cal.Rptr.3d 413

, review granted July 9, 2014, No. S217763.) Our Supreme Court granted review and, after issuing an opinion, remanded the case to us. (Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal.4th 204, 241, 195 Cal.Rptr.3d 247, 361 P.3d 342 (Center for Biological Diversity ).)

In the published portion of this opinion, we will discuss the developer's contention, concurred in by the department, that we should supervise compliance with a writ of mandate. As will be noted, the developer and the department argue we should in essence issue our own writ of mandate and then supervise compliance with our orders. This contention is based upon language appearing in Public Resources Code ¹ section 21186.9, subdivision (a) and our Supreme Court's opinion. As will noted, we conclude we do not have that authority since we are reviewing this case on direct appeal. Our disposition is to reverse the judgment in part and affirm it in part.

II.–IV.^**

V. THE SCOPE OF OUR REMAND ORDER

A. The Parties' Remand Arguments

The trial court ruled that six aspects of the environmental impact report were deficient and entered a stay of any construction on the project site. The trial court ruled the following errors appeared in the environmental impact report: the department failed to prevent the taking of the unarmored threespine stickleback as part of construction of a bridge over the Santa Clara River; the environmental impact report failed to assess the impact of project-related dissolved copper

discharge when storm waters breached the dry gap; the department's analysis of mitigation measures for the San Fernando Spineflower was legally impermissible; the department's assessment of the project's greenhouse gas omissions were inadequate; the environmental impact reports assessment of the project's impact on Native American cultural resources was not supported by substantial evidence; and the environmental impact report improperly relied upon portions of the specific plan in rejecting alternatives to the project. We reversed in their entirety the trial court's findings as to: the effects of dissolved copper

runoff on steelhead smolt; the San Fernando Spineflower preserves; Native American resources; and reliance upon the specific plan. We have reversed in part the trial court's greenhouse gas emission findings concerning selection of a criterion of significance and its application to a business as usual scenario. We have affirmed the trial court's greenhouse gas findings concerning the absence of substantial evidence to support the no significant impact finding. We have affirmed the trial court's findings disapproving mitigation measures BIO–44 and BIO–46 which arise from the construction of a bridge over the Santa Clara River.

After our Supreme Court issued its opinion, the developer filed a motion re remand concerning the scope of our ruling which is concurred in by the department. Plaintiffs have filed an opposition to some of the developer's arguments. The developer and the department argue our Supreme Court's opinion permits us retain jurisdiction to supervise the completion of the environmental review process. The developer argues as follows in part: “[T]he the superior court judge who heard and decided this case (Hon. Ann I. Jones) is no longer hearing mandate petitions, and this case has been reassigned to the Hon. John A. Torribio. Although Judge Torribio decided the related cases (Friends of the Santa Clara River v. County of Los Angeles, No. B256125, and California Native Plant Society v. County of Los Angeles, No. B258090, both of which are still pending before the Supreme Court as ‘grant and holds' ancillary to this case, Judge Torribio is not familiar with the facts of this case (this case is never been before him.) Accordingly, remand to the superior court would necessarily result in delays that are to be avoided in [California Environmental Quality Act] litigation.” In addition, the developer and the department argue that this court is intimately familiar with this case. According to the developer and the department, by retaining jurisdiction, this court's familiarity with the case will ameliorate the potential prejudice caused by the delays to date. The developer concludes: “We ask this [c]ourt to reaffirm its original holding concerning the merits of the steelhead and cultural resources claims; retain jurisdiction of the greenhouse gas and unarmored threespine stickleback issues; and use [the developer's] proposed writ as a guide for this court....”

Plaintiffs argue we should not retain jurisdiction but issue a remittitur directing the trial court to decide any remaining issues. Plaintiffs argue as follows in part. A reviewing court has the authority to act as specified in Code of Civil Procedure section 43

, which states in part: “[T]he courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. In giving its decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case. Its judgment in appealed cases shall be remitted to the court from which the appeal was taken.” (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701, 107 Cal.Rptr.2d 149, 23 P.3d 43

.) Further, Code of Civil Procedure section 912 states in part, “Upon final determination of an appeal by the reviewing court, the clerk of the court shall remit to the trial court a certified copy of the judgment or order of the reviewing court and of its opinion, if any.” (See Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, 98 Cal.Rptr.2d 1, 3 P.3d 286.)

The developer and the department argue these statutory provisions which apply to appeals do not apply here. The developer and the department rely upon the general principle that litigation involving environmental impact report should be promptly concluded. (§ 21167.1, subd. (a); Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500, 106 Cal.Rptr.3d 858, 227 P.3d 416

.) More specifically, the developer and the department rely upon the following portion of section 21168.9, subdivision (a) which states in part, “(a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following....” (Italics added.) The developer and the department focus upon this italicized language as the basis for its contention concerning our future obligations. Section 21168.9, subdivision (a) then identifies a series of actions that may be taken as a result of a remand from an appellate court.²

Section 21168.9, subdivision (b) limits the authority of a court to “include only those mandates which are necessary” to achieve compliance with the California Environmental Quality Act. Section 21168.9, subdivision (b) contains three relevant provisions. The first aspect limits the court's mandate to those matters necessary to achieve compliance with the California Environmental Quality Act, “Any order pursuant to subdivision (a)...