Second District Court of Appeal Rejects Conservation Group Challenge to EIR for Newhall Ranch Development

by Rick McNeil and Colin Higgins

In Center for Biological Diversity, the California Department of Fish and Wildlife and the Army Corps of Engineers (“Department”) certified an EIR assessing the effects of a proposed conservation plan, resource management plan, streambed alteration agreement, and incidental take permits relating to the Newhall Ranch specific plan development. The specific plan included a broad range of residential, mixed-use and non-residential development and was projected to occur over a 25 to 30 year period.

Plaintiffs, environmental groups, challenged the EIR through a petition for a peremptory writ of mandate that alleged, among other things, that the EIR’s mitigation measures would result in the prohibited take – i.e. hunt, pursue, catch, capture, or kill – of the state and federally protected stickleback fish. The petition was granted by the trial court.

The Court of Appeal reversed the trial court. Interpreting the Endangered Species Act in accordance with pertinent provisions of the Fish and Game Code, the Court of Appeal held that the EIR’s conservation means, including trapping and transplanting of the stickleback, did not constitute a take. The Court of Appeal noted that Fish and Game Code section 2061 expressly permits “use of live trapping and transplantation if done for the purposes of conservation,” which is what the EIR provided. Hence the mitigation measures did not constitute an unlawful take of the stickleback.

The Court of Appeal also rejected all of plaintiffs’ other attacks to the EIR, finding (i) that the cultural impact analysis of the EIR was sufficient, (ii) substantial evidence supported the Department’s economic infeasibility finding regarding alternatives to the project, (iii) substantial evidence supported a finding that the project’s impacts on the steelhead smolt would be less than significant, and (iv) the EIR sufficiently mitigated any impacts to the Spineflower.

Basic Facts:
In May 2003, the County of Los Angeles approved the Newhall Ranch specific plan that included a broad range of residential, mixed-use and non-residential development. The build-out of the specific plan was projected to occur over a 25 to 30 year period. The California Department of Fish and Wildlife and the Army Corps of Engineers (“Department”) certified an EIR assessing the effects of a proposed conservation plan, resource management plan, streambed alteration agreement, and incidental take permits relating to the development. Of note, the EIR included mitigation measures involving the trapping and transportation of the state and federally protected fish Unarmored Threespine Stickleback (stickleback).

Plaintiffs, environmental groups, challenged the EIR through a petition for a peremptory writ of mandate that alleged, among other things, that the EIR’s mitigation measures would result in the prohibited take – i.e. hunt, pursue, catch, capture, or kill – of the stickleback. The mitigation measures included live trapping and transplanting of the stickleback away from the development areas. Plaintiffs also argued the project area contained the Chumash and Tataviam Tribes’ ancestral homes, which would be subject to excavation, earthmoving and other disturbances, and that the EIR utilized an impermissibly narrow set of alternatives. The petition was granted by the trial court.

Appellate Decision (Reversed):

Endangered Species Act
Interpreting the Endangered Species Act in accordance with pertinent provisions of the Fish and Game Code, the Court of Appeal held that the EIR’s conservation means, including trapping and transplanting of the stickleback, did not constitute a take. The Court of Appeal noted that Fish and Game Code section 2061 expressly permits “use of live trapping and transplantation if done for the purposes of conservation,” which is what the EIR provided. Hence the mitigation measures did not constitute an unlawful take of the stickleback.

Cultural Resources
As an initial matter, the Court of Appeal held that plaintiffs forfeited the cultural resources issues relating to the Chumash and Tataviam Tribes because the issues were not raised until a year after the comment period concluded. Second, the Court analyzed the merits of plaintiffs’ argument and concluded that none of plaintiffs’ claims served as a basis to disprove the EIR. The Court found, among other things, that the EIR’s cultural impact analysis was supported by substantial evidence based upon an extensive pre-onsite survey archival analysis that was consistent with recommendations from the U.S. Department of the Interior. Thus, no further research was necessary.

Project Alternatives
The trial court held that the Department failed to perform an independent analysis of feasible alternatives or feasible mitigation measures that could substantially lessen the significant impacts of the project, but instead improperly elected to remain wedded to the existing specific plan. The Court of Appeal reversed the trial court, finding the Department’s reliance on the specific plan proper because all development, including the assessment of alternatives in an EIR, “must proceed in a fashion consistent with the specific plan.” The Court of Appeal further held that substantial evidence supported the Department’s economic infeasibility finding regarding alternatives to the project. Notably, the Court of Appeal held that an alternative that would cause a 15% cost increase per net developable acre was economically infeasible because of its substantially increased costs.

Steelhead Smolt and Water Quality Analysis
The trial court further held that the EIR failed to adequately discuss the impact of dissolved cooper discharged from the project area on steelhead smolt. The Court of Appeal reversed, first finding that Plaintiffs forfeited this argument because it was not raised during the EIR comment period. Second, the Court of Appeal held that substantial evidence supported a finding that the project’s impacts on the steelhead smolt would be less than significant. The EIR described that the steelhead smolt’s habitat was in an area that would not be affected by potential copper runoff issues. In addition, the EIR stated that the copper levels would be below the California Toxics Rule threshold.

Spineflower Mitigation Measures and Incidental Take Permit
Plaintiffs raised a host of arguments regarding why the EIR’s spineflower evaluation was defective, many of which the trial court agreed with. The Court of Appeal again reversed, finding that the record demonstrated substantial evidence supporting the Department’s mitigation findings. In particular, the EIR contained numerous scientific studies that concluded that the conservation plan significantly expanded the area for potential growth of the endangered spineflower. In addition, the Court found that the impacts from the spineflower incidental take permit were minimized and fully mitigated.

Center for Biological Diversity et al. v. Department Of Fish and Wildlife, The Newhall Land and Farming Company, Real Party in Interest and Appellant, 224 Cal App 4th 1105, 169 Cal. Rptr. 3d 413, (Cal App 2 Dist.) (March 20, 2014)

Trial Court Judge:
Ann I. Jones, Los Angeles County Superior Court

Appellate Panel:
Turner (Mosk and Kriegler concurring)

Tagged , , , , ,

Share this Article: