San Bernardino Valley Audubon Society v. City of Moreno Valley

• Decision Date: 15 April 1996
• Docket Number: No. E015810,E015810
• Citation: 51 Cal.Rptr.2d 897,44 Cal.App.4th 593
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2659, 96 Daily Journal D.A.R. 4369 SAN BERNARDINO VALLEY AUDUBON SOCIETY, etc., et al., Plaintiffs and Appellants, v. CITY OF MORENO VALLEY, et al., Defendants and Respondents.

Page 897

51 Cal.Rptr.2d 897

44 Cal.App.4th 593, 96 Cal. Daily Op. Serv. 2659,

96 Daily Journal D.A.R. 4369

SAN BERNARDINO VALLEY AUDUBON SOCIETY, etc., et al., Plaintiffs and Appellants, v. CITY OF MORENO VALLEY, et al., Defendants and Respondents.

No. E015810.

Court of Appeal, Fourth District, Division 2, California.

April 15, 1996.

Rehearing Denied May 7, 1996.

Review Denied July 24, 1996.

Kate M. Neiswender, Lomita, and Mark S. Neiswender, Redlands, for Plaintiffs and Appellants.

Gresham, Varner, Savage, Nolan & Tilden, Allen B. Gresham and Robin B. Cochran, San Bernardino, for Defendant and Respondent City of Moreno Valley.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz, IV, Assistant Attorney General, and William S. Abbey, Deputy Attorney General, for Defendant and Respondent California Department of Fish and Game.

Kingsley Hines, Donald A. Redd, Michael Gonzales, William T. Elston, Douglas P. Ditonto, Michael D. Montoya and Nino J. Mascolo, Rosemead, for Defendant and Respondent Southern California Edison Company.

N. Gregory Taylor, General Counsel, Karen L. Tachiki, Assistant General Counsel, Jarlath Oley, Senior Deputy General Counsel and Norman N. Flette, Deputy General Counsel for Defendant and Respondent The Metropolitan Water District of Southern California.

Woodrow D. Smith, Joyce A. Padleschat and Nazila Y. Levy, Los Angeles, for Defendant and Respondent Southern California Gas Company.

Best, Best & Krieger, Gene Tanaka and Susan C. Nauss, Michelle Ouellette, Riverside Beth Eagleson and C. Larry Davis, San Diego, for Defendant and Respondent San Diego Gas & Electric Company.

for Defendants and Respondents Riverside County Habitat Conservation Agency, et al.

HOLLENHORST, Associate Justice.

San Bernardino Valley Audubon Society and Friends of the Northern San Jacinto Valley (collectively Audubon) filed a petition for writ of mandate challenging approvals for the Moreno Highlands development. The second cause of action, alleging violations of the California Endangered Species Act (CESA) (Fish & Game Code, § 2050 et seq.) ¹ was severed for trial. The trial court determined CESA allowed the Department of Fish and Game (Department) to issue permits for "take" ² of an endangered species, the Stephens' Kangaroo Rat (SKR), which would result from the development. Audubon appeals from the trial court's order denying its petition for writ of mandate as to the second cause of action.

FACTS

Moreno Highlands (the project) is a proposed development project in Moreno Valley. The project site consists of 3,038 acres of flat and rolling grasslands bounded on the northeast by the Badlands area, on the south by the San Jacinto Wildlife Area, on the southeast by the Lake Perris State Recreation Area, and on the east and west by agricultural land. The project site contains occupied habitat of the SKR.

The SKR is a small, nocturnal mammal related to the squirrel family of rodents. The SKR inhabits flat grasslands and coastal sage habitat of western Riverside County and northern San Diego County. The SKR has been listed as a Federal endangered species since October 1988. The continued existence of the species has been threatened by loss of habitat which occurred, starting in the late 1800's, from dry farming and livestock production, and more recently, through grading and development connected with urbanization of large portions of western Riverside County. Historically, SKR habitat was distributed patchily over 300,000 acres of land; now, the SKR occupies only about 22,000 acres.

In July 1990, the developer submitted a new specific plan (Specific Plan 212-1) to the City of Moreno Valley (City), proposing 7,763 dwelling units and a 650-acre business park for the project site. ³ The City prepared a draft EIR for Specific Plan 212-1 and circulated it for public review in June 1991.

Meanwhile, in 1990, the Riverside County Habitat Conservation Agency (RCHCA) was formed as a joint powers agency to "plan for, acquire, administer, operate, and maintain land and facilities for ecosystem conservation and habitat reserves to implement habitat conservation plan for the Stephen's Kangaroo Rat and other listed or candidate threatened and endangered species." In October 1990, the Department entered into an Agency Agreement with the Cities of Riverside, Corona, Hemet, Lake Elsinore, Moreno Valley, Perris, and Temecula; the County of Riverside; ⁴ and the RCHCA.

The Agency Agreement was labelled a permit under section 2081, allowing take of the SKR so long as mitigation measures were taken in accordance with certain federal agreements and plans, including the Short-Term Habitat Conservation Plan (Short Term Plan) and the Implementation Agreement, the provisions of which are summarized below.

Under the Agency Agreement, the Department authorized RCHCA's member agencies to take SKR's within certain areas and under specified conditions. Developers within those areas were required to pay fees or donate lands which RCHCA would use to acquire and protect habitat occupied by the SKR. For each acre of occupied habitat taken, acquisition of an acre of occupied habitat was required. The specific purpose of the Agency Agreement was to "acquire off-site mitigation lands, protect such lands and provide for the long-term operation and maintenance of such mitigation habitat on an acre-by-acre basis."

The purpose of the Short-Term Plan incorporated into the Agency Agreement was to ensure survival of the SKR in western Riverside County and to provide satisfactory mitigation for the take authorized by the Agency Agreement. The Short-Term Plan required: (1) the collection of a mitigation fee of $1,950 per acre on new development within a specified area of Riverside County to fund the evaluation and acquisition of permanent reserves; (2) the identification of areas in western Riverside County that currently contain occupied SKR habitat and that might be suitable for reserves; (3) the initiation of technical studies and land use analyses to evaluate potential reserve sites; and (4) the establishment of an interjurisdictional task force to oversee and implement the reserve program.

The Implementation Agreement, also incorporated into the Agency Agreement, provided mechanisms for carrying out the Short-Term Plan. The Implementation Agreement provided for collecting mitigation fees and identifying other sources of funding to purchase the reserves.

In February 1992, the City, the United States Fish and Wildlife Service, the Department, and the developer issued a Joint Proposal as an addendum to the Final Environmental Impact Report (FEIR) for the project. The purpose of the Joint Proposal was to mitigate the project's impacts on the endangered SKR. The Joint Proposal noted several new impacts on the SKR population.

In March 1992, the City approved Specific Plan 212-1, amended the zoning to conform to Specific Plan 212-1, and amended the General Plan. The City issued a statement of overriding considerations, stating that all environmental impacts of the project that could not be mitigated were insignificant in light of the economic and social significance of the project to the City. The City approved the FEIR, which incorporated by reference the Agency Agreement and Joint Proposal.

Audubon filed a petition for writ of mandate on April 16, 1992, seeking to set aside the City's approvals for the project. Originally, Audubon named only the Department and the City as defendants; however, the City moved to join as defendants to the second cause of action RCHCA, the member agencies, and other indispensable parties, including Metropolitan Water District of Southern California (Metropolitan Water District); San Diego Gas & Electric Company; Southern California Edison Company (Edison); and Southern California Gas Company. ⁵ The court granted those motions. Meanwhile, in December 1992, the court severed the second cause of action alleging violation of CESA from other causes of action. ⁶

Following trial on the second cause of action, the trial court denied the petition on the ground the issuance of the permit was a legislative act, and the trial court would therefore not disturb it. The court stated, "All the court can do is to rule that the agreement is not a sham or capricious act by the legislative body."

This appeal ensued.

DISCUSSION ⁷

I. Legality of Agency Agreement

Audubon contends CESA prohibits the take of endangered species incidental to private development, and the Agency Agreement violated that prohibition.

A. Standard of Review. The interpretation of CESA and the application of CESA to undisputed facts are pure issues of law; thus, this court is free to ignore the decision of the trial court and to exercise independent judgment on the merits. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1561, 11 Cal.Rptr.2d 222; Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal.App.3d 300, 305-306, 202 Cal.Rptr. 44.)

B. Interpretation of Endangered Species Act. Under CESA, the Department may not allow take of an endangered species except in specific and limited circumstances. (§§ 2080, 2081; see also Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., supra, 8 Cal.App.4th 1554, 11 Cal.Rptr.2d 222.) Section 2080 states, "No person shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission determines to be an endangered species or a threatened species, or attempt any of these acts, except as otherwise provided in this [act], ..."

Section 2081 states, "Through permits or memorandums of understanding, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import,...