Mountain Lion Foundation v. Fish & Game Com.

• Decision Date: 31 July 1997
• Docket Number: No. S053508,S053508
• Citation: 16 Cal.4th 105,65 Cal.Rptr.2d 580,939 P.2d 1280
• Court: California Supreme Court
• Parties: , 939 P.2d 1280, 45 ERC 1057, 97 Cal. Daily Op. Serv. 6056, 97 Daily Journal D.A.R. 9909 MOUNTAIN LION FOUNDATION et al., Plaintiffs and Appellants, v. FISH AND GAME COMMISSION, Defendant and Appellant; COUNTY OF KERN DEPARTMENT OF PLANNING AND DEVELOPMENT SERVICES, Real Party in Interest and Appellant.

Page 580

65 Cal.Rptr.2d 580

16 Cal.4th 105, 939 P.2d 1280, 45 ERC 1057,

97 Cal. Daily Op. Serv. 6056,

97 Daily Journal D.A.R. 9909

MOUNTAIN LION FOUNDATION et al., Plaintiffs and Appellants, v. FISH AND GAME COMMISSION, Defendant and Appellant;

COUNTY OF KERN DEPARTMENT OF PLANNING AND DEVELOPMENT SERVICES, Real Party in Interest and Appellant.

No. S053508.

Supreme Court of California.

July 31, 1997.

Joseph J. Brecher, David L. Henkin and Joel R. Reynolds, Los Angeles, for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz IV, Assistant Attorney

General, and John Davidson, Deputy Attorney General, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Charles F. Collins, Deputy County Counsel, for Real Party in Interest and Appellant.

Robin L. Rivett, Sacramento, and M. Reed Hopper, Davis, as Amici Curiae on behalf of Defendant and Appellant and Real Party in Interest and Appellant.

BROWN, Justice.

The California Endangered Species Act (CESA) provides protection and management resources for certain native species of fish, wildlife, and plants in imminent danger of or threatened with extinction. Under CESA, the Fish and Game Commission (Commission) is assigned the task of establishing a list of endangered species and a list of threatened species. The Commission is required to add or remove species from either list when warranted, and to develop criteria for determining if a species is endangered or threatened.

The litigation in this case followed the Commission's decision to remove the Mojave ground squirrel from the threatened species list. The delisting decision was the first time since CESA's enactment that protection had been withdrawn from any species.

The Court of Appeal concluded the Commission abused its discretion in removing the ground squirrel from the list of threatened species because the Commission's failure to prepare and certify an environmental impact report (EIR) when evaluating the delisting petition violated the California Environmental Quality Act (CEQA). We conclude: (1) CESA can be harmonized with CEQA; (2) the Commission is entitled to an exemption from the EIR requirement of CEQA when it follows its certified regulatory program; and (3) the Commission abused its discretion in delisting the Mojave ground squirrel by failing to comply with its own procedures. We therefore affirm the judgment of the Court of Appeal.

I. Background

In November 1991, the Commission accepted a petition from the Kern County Department of Planning and Development (Kern County) seeking removal of the Mojave ground squirrel from the list of threatened species. As part of a process lasting nearly two years, the Commission, with assistance from the Department of Fish and Game (Department), solicited public comment, obtained an independent review and report on the status of the ground squirrel, and, after conducting an extensive public hearing, decided to remove the Mojave ground squirrel from the list of threatened species.

Mountain Lion Foundation and others (hereafter referred to collectively as Mountain Lion) filed a petition for writ of administrative mandamus seeking to set aside the Commission's decision. The petition alleged the Commission failed to meet the requirements of CESA, and the Commission's findings are not supported by substantial evidence. The petition also alleged the Commission's delisting was carried out in violation of CEQA. The trial court rejected Mountain Lion's CESA contentions. As to Mountain Lion's CEQA claim, however, the trial court determined that removing the ground squirrel from the threatened species list was an activity subject to CEQA, and that none of the exemptions to CEQA applied. Because the Commission had carried out the delisting without first preparing and certifying an EIR as required under CEQA, the court ordered the Commission to vacate its decision.

Mountain Lion appealed the trial court's judgment in favor of the Commission on the CESA claim, and the Commission and Kern County appealed the trial court's judgment in favor of Mountain Lion on the CEQA claim. The Court of Appeal affirmed the trial court's judgment, holding the Commission did not violate CESA when it delisted the Mojave ground squirrel but it failed to comply with the requirements of CEQA by not preparing and certifying an EIR prior to the delisting.

We granted petitions for review by the Commission and by Kern County.

II. Discussion

CEQA is a comprehensive scheme designed to provide long-term protection to the environment. (Pub. Resources Code, § 21001; all further statutory references are to this code unless otherwise noted.) In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. (§ 21000, subd. (g); see generally, Sierra Club v. Bd. of Forestry (1994) 7 Cal.4th 1215, 1229, 32 Cal.Rptr.2d 19, 876 P.2d 505, hereafter Sierra Club; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390, 253 Cal.Rptr. 426, 764 P.2d 278, hereafter Laurel Heights; Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935, 231 Cal.Rptr. 748, 727 P.2d 1029.) CEQA is to be interpreted "to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)

Generally, CEQA applies to discretionary projects. (§ 21080, subd. (a).) A project is an activity undertaken by a public agency which may cause a physical change in the environment. (§ 21065; Cal.Code Regs., tit. 14, § 15378; all further citations to title 14, section 15000 et seq. of California Code of Regulations will be referred to as Guidelines.) A discretionary project is one subject to "judgmental controls," i.e., where the agency can use its judgment in deciding whether and how to carry out the project. (Guidelines, § 15002, subd. (i); cf. Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 271-273, 235 Cal.Rptr. 788 [distinguishing decisionmaking discretion subject to CEQA from "ministerial" activity that is not].)

If a public agency proposes to approve a discretionary project, the agency's activity may nonetheless be exempt from CEQA by legislative command. (See, e.g., § 21080, subd. (b) [exempting specific projects from CEQA]; see also §§ 21080.01-21080.03 [exempting construction and maintenance of specified prison facilities]; see generally, Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 376, 267 Cal.Rptr. 569, 787 P.2d 976.) Other classes of projects are "categorically exempt" from CEQA pursuant to administrative regulation because they do not have a significant effect on the environment. (§ 21084; see No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 529 P.2d 66, hereafter No Oil; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 653-655, 11 Cal.Rptr.2d 850, hereafter Dunn-Edwards.) Finally, CEQA does not apply if "it can be seen with certainty" that a project will not have a significant effect on the environment. (Guidelines, § 15061, subd. (b)(3); see No Oil, supra, 13 Cal.3d at p. 74, 118 Cal.Rptr. 34, 529 P.2d 66 [discretionary activity having no possibility of causing significant environmental effect not subject to CEQA].) A " '[s]ignificant effect on the environment' " is a substantial or potentially substantial, adverse change in the environment. (§ 21068.) " 'Environment' " is defined as the "physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, and objects of historic or aesthetic significance." (§ 21060.5.)

Whenever a project may have a significant and adverse physical effect on the environment, an EIR must be prepared and certified. (§ 21100, subd. (a); cf. Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 277-279, 118 Cal.Rptr. 249, 529 P.2d 1017; City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 538, 230 Cal.Rptr. 867.) An EIR provides the public and responsible government agencies with detailed information on the potential environmental consequences of an agency's proposed decision. (See generally, No Oil, supra, 13 Cal.3d at p. 81, 118 Cal.Rptr. 34, 529 P.2d 66; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307, 248 Cal.Rptr. 352.) The EIR describes ways to minimize significant environmental effects, and suggests alternatives to the project, including the option of "no project." (§ 21061; Laurel Heights, supra, 47 Cal.3d at pp. 390-391, 253 Cal.Rptr. 426, 764 P.2d 278; see also Guidelines, § 15126, subd. (d)(4) ["no project" alternative to be considered along with proposed project's environmental impact].)

In some cases, notwithstanding a public agency's determination that a proposed activity may have a significant, adverse effect on the environment, an EIR is not required. Certain state agencies, operating under their own regulatory programs, generate a plan or other environmental review document that serves as a functional equivalent of an EIR. (§ 21080.5, subd. (a); Sierra Club, supra, 7 Cal.4th at pp. 1229-1230, 32 Cal.Rptr.2d 19, 876 P.2d 505; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196, 132 Cal.Rptr. 377, 553 P.2d 537, hereafter Wildlife Alive; Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1584, 232 Cal.Rptr. 729, hereafter Citizens.) Because the plan or document is generally narrower in scope than an EIR, environmental review can be completed more expeditiously. (See Note, The...