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

Decision Date04 December 2017
Docket NumberB280815
Citation226 Cal.Rptr.3d 432,17 Cal.App.5th 1245
CourtCalifornia Court of Appeals Court of Appeals
Parties CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, Defendant and Respondent; The Newhall Land and Farming Company, Real Party in Interest and Respondent.

Certified for Partial Publication.*

John Buse, Kevin Bundy and Aruna Prabhala; Chatten-Brown and Carstens, Jan Chatten-Brown, Santa Monica and Doug Carstens; Frank G. Wells Environmental Law Clinic and Sean B. Hecht, Los Angeles; Wishtoyo Foundation/Ventura Coastkeeper and Jason A. Weiner ; Adam Keats, Joshua Tree for Plaintiffs and Appellants Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, Wishtoyo Foundation/Ventura Coastkeeper.

Office of the General Counsel, Wendy L. Bogdan and John H. Mattox, Senior Staff Counsel; Thomas Law Group, Tina A. Thomas, Amy R. Higuera and Meghan M. Dunnagan, for Defendant and Respondent California Department of Fish and Wildlife.

Gatzke Dillon & Ballance, Mark J. Dillon and David P. Hubbard, Escondido; Nielsen Merksamer Parinello Gross & Leoni and Arthur G. Scotland, Sacramento; Morrison & Foerster and Miriam A. Vogel, Los Angeles for Real Party in Interest and Respondent The Newhall Land and Farming Company.

RAPHAEL, J.**

I. INTRODUCTION

This is the second appeal in this case, in which plaintiffs brought a mandate petition challenging under the California Environmental Quality Act (CEQA; Pub. Resources Code § 21000 et seq. ) the environmental impact report (EIR) and related project approvals for two natural resource plans for the proposed Newhall Ranch development in northwest Los Angeles County.1 Our review is shaped by the first appeal, which resulted in an opinion from our Supreme Court and our subsequent opinion on remand.

In this appeal from the post-remand judgment, plaintiffs argue that the judgment and accompanying writ were erroneous under CEQA for two purely legal reasons: they claim that Public Resources Code section 21168.92 prohibits partial decertification of an EIR, and that the same section prohibits leaving project approvals in place while decertifying an EIR. We hold that both actions are legally permissible under CEQA. We thus affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The first appeal was taken from a 2012 trial court judgment, and a corresponding writ of mandate, that set aside the Newhall Ranch project approvals, ordered defendant California Department of Fish and Wildlife (the department) to set aside its certification of the final EIR, and enjoined the department and the developer from proceeding with any project activity.3 In our first opinion in the matter, we reversed the judgment in full. (Center for Biological Diversity v. Department of Fish and Wildlife (Mar. 20, 2014, B245131) [nonpub. opn.], review granted July 9, 2014, No. S217763 (Center for Biological Diversity I ).)

On review, our Supreme Court, reversing our ruling, held that the Newhall Ranch's EIR was deficient in two ways: its finding that the project's greenhouse gas emissions were insignificant was "not supported by a reasoned explanation based on substantial evidence"; and its measure of protecting a fish species, the unarmored threespine stickleback, by capturing and relocating it, was itself a prohibited taking of the protected species under the Fish and Game Code. ( Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal.4th 204, 213, 231-232, 237, 195 Cal.Rptr.3d 247, 361 P.3d 342.) Additionally, the Supreme Court directed us to reexamine on the merits two claims of report deficiencies that we had held were forfeited—the project's impact on Native American cultural resources, and the effect of the project's dissolved copper discharge on steelhead smolt. ( Id. at p. 240, 195 Cal.Rptr.3d 247, 361 P.3d 342.)

Following remand from the Supreme Court, on July 11, 2016, we issued a decision affirming in part and reversing in part the original judgment on the mandate petition, with directions to the trial court on remand. ( Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, 469, 204 Cal.Rptr.3d 663 ( Center for Biological Diversity II ).) As to greenhouse gas emission impact, applying the Supreme Court's opinion, we directed the trial court "to enter a finding that there is no substantial evidence the project's greenhouse gas emissions will not result in a cumulatively significant environmental impact." ( Ibid. ) As to the stickleback, also following the Supreme Court's directions, we affirmed the trial court's finding that the mitigation measures to protect that fish violated Fish and Game Code section 5515. ( Ibid. ) Finally, where the trial court had found deficiencies concerning Native American resources and the steelhead smolt, we reversed after considerable analysis. ( Ibid. ) The remainder of the EIR survived the appellate process.

In sum, we held that on remand the trial court was to address only the greenhouse gas emission and stickleback issues, which "will entail at the minimum setting aside those two portions of the [EIR]. But beyond that, we leave further matters in the trial court's good hands. Whether to maintain the injunction against any development in effect or partially certify the environmental impact report depends on competing factual issues including section 21168.9, subdivision (b) severance issues. [Citations]." ( Center for Biological Diversity II, supra, 1 Cal.App.5th at p. 469, 204 Cal.Rptr.3d 663.)

After a hearing following the remand, the trial court entered judgment on December 16, 2016 and issued a corresponding peremptory writ of mandate on December 19, 2016. Following the terms of the remand, judgment was rendered in favor of plaintiffs as to the greenhouse gas emission and stickleback findings in the EIR. Judgment was rendered in favor of the department and the developer as to all other issues.

The judgment further ordered that a peremptory writ of mandate be issued directing the department to decertify the portions of the EIR that address the significance of the project's greenhouse gas emissions, and the validity of the stickleback mitigation measures. The judgment stated: "Consistent with the Supreme Court's opinion, all remaining portions of the EIR comply with CEQA." Accordingly, the writ directed the department to void certification of portions of the EIR that address the department's determination regarding the significance of the project's greenhouse gas emissions and the stickleback mitigation measures.

The judgment and writ also enjoined all project activity including construction until the EIR was compliant with law. Further, the department also was ordered to "suspend" two project approvals that related directly to the EIR's determinations regarding the significance of the project's greenhouse gas emissions and stickleback mitigation measures, but four other approvals were left in place because no action was needed as to them "unless compliance with the Writ changes or affects" them.

Plaintiffs appeal from the December 16, 2016 judgment.4

III. DISCUSSION
A. An Appeal from the Writ Was Not Required .***
B. A Trial Court Has Authority to Partially Decertify an EIR

We turn to plaintiffs' first legal challenge. The judgment directs the department to decertify only the portions of the EIR that address greenhouse gas emissions and stickleback mitigation measures, rather than the entire EIR, and the writ implements that partial decertification order. Plaintiffs argue that "CEQA permits no such middle ground" between full decertification and no decertification. Plaintiffs claim: "Nothing in CEQA supports the concept of a partially adequate EIR. An EIR can either be certified as ‘complete’ under CEQA or not."

Plaintiffs are correct that an agency initially must certify an entire EIR before approving a project. ( Cal. Code Regs., tit. 14, § 15004, subd. (a) (Guidelines) ["Before granting any approval of a project subject to CEQA, every lead agency ... shall consider a final EIR ...."]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394, 253 Cal.Rptr. 426, 764 P.2d 278 ( Laurel Heights ).) However, a court has additional options once it has found an agency's EIR certification noncompliant. Section 21168.9 governs the writ of mandate that a court issues after "trial, hearing, or remand from an appellate court" to remedy a CEQA violation. ( Save Our Schools v. Barstow Unified School Dist. Bd. of Education (2015) 240 Cal.App.4th 128, 144, 191 Cal.Rptr.3d 916 ; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 286, 148 Cal.Rptr.3d 310 ( Preserve Wild Santee ).) We review a trial court's interpretation of section 21168.9 de novo. ( Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 368, 155 Cal.Rptr.3d 546 ( Golden Gate ); Preserve Wild Santee, supra , 210 Cal.App.4th at p. 287, 148 Cal.Rptr.3d 310.)

Section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand.5 The section applies when a court finds that "any determination, finding, or decision of a public agency" is noncompliant. ( § 21168.9, subd. (a) [emphasis added] ). After making such a finding, "the court must enter an order, in the form of a peremptory writ of mandate, containing one or more of three specified mandates. ( § 21168.9, subds. (a) & (b).)" ( Preserve Wild Santee, supra , 210 Cal.App.4th at p. 286, 148 Cal.Rptr.3d 310.) One of those three mandates is voiding the agency determination "in whole or in part." ( § 21168.9, subd. (a)(1).) When a court voids an agency determination "in part," it must make severance findings pursuant to section 21168.9, subdivision (b), to determine whether the voided...

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