CA Supreme Court Issues Major Decision Regarding Mitigation for Impacts on Protected Species Under CEQA

In Center for Biological Diversity v. California Department of Fish and Game (11/30/2015), the California Supreme Court set aside California Department of Fish and Wildlife’s (“DFW”) approval of an environmental impact report (“EIR”) for the proposed Newhall Ranch development, a planned community that would house 58,000 people on nearly 12,000 acres along the Santa Clara River. The Court’s decision included an important analysis of the mitigation measures for project impacts on the unarmored threespine stickleback, a fully protected species under the California Endangered Species Act (“CESA”).  The Court held that state laws and regulations expressly prohibit any actions which constitute mitigation of such project impacts under CEQA.

In reaching its conclusion, the Court rejected DFW’s interpretation of state statutes and regulations pertaining to “take” of fully protected fish such as the stickleback because it found DFW’s interpretation did not comport with the express terms of the statutes and regulations or their legislative history.  Fish and Game Code Section 5155 provides that “fully protected fish or parts thereof may not be taken or possessed at any time . . . .,” except that DFW may authorize the taking of those species for necessary scientific research.  DFW argued that this provision should be harmonized with provisions in CESA which permit trapping and transplantation of endangered species for conservation purposes.  It reasoned that this provision should be extended to cover fully protected species as well, so that the trapping and transplantation of the unarmored threespine stickleback would not be considered prohibited “take” and thus would be a viable CEQA mitigation measure.

The Court disagreed, explaining that fully protected species are subject to stricter prohibitions against taking than endangered species.  Since the definition of “take” includes pursuit, catch and capture of such species, such actions would constitute “take” even if done for conservation purposes.  While “take” of a fully protected species is permitted for scientific research, which may include efforts to recover the species, Section 5155 expressly prohibits take of these species as part of mitigation for a project under CEQA.  The Court found that DFW’s interpretation was entirely inconsistent with this statutory prohibition and would render it meaningless.  In reaching its holding on this issue, the Court acknowledged that courts generally give deference to agency interpretations of statutes and regulations when the interpretation concerns technical issues within agency expertise, but found such deference was not appropriate in this case because it involved the meaning and effect of statutes which is a matter lying squarely within the constitutional domain of the courts.

The Court’s ruling is not necessarily a death knell for project proponents with fully protected species in their project area.  The opinion expressly upheld DFW’s use of trapping and transplantation to protect fully protected species from threats to their survival and recovery, “holding only that such actions may not be relied on or ‘specified’ as project mitigation measures pursuant to CEQA.”  Thus, so long as DFW-approved conservation efforts on behalf of the fully protected species are not considered mitigation for project impacts, and are not identified as project mitigation in EIRs, they could achieve the desired result (species protection) without running afoul of governing statutes and regulations.

Meyers Nave.