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Center for Biological Diversity v. Department of Fish & Wildlife

California Court of Appeals, Second District, Fifth Division

July 11, 2016

CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents,
v.
DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant; THE NEWHALL LAND AND FARMING COMPANY, Real Party in Interest and Appellant

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

         As modified Aug. 10, 2016.

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS131347, Ann I. Jones, Judge.

          Reversed with directions in part; affirmed in part.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          COUNSEL

          Thomas R. Gibson, Wendy L. Bogdan and John H. Mattox; Thomas Law Group, Tina A. Thomas, Ashle T. Crocker and Amy R. Higuera for Defendant and Appellant.

         Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard; Morrison & Foerster, Miriam A. Vogel; Nielsen Merksamer Parinello Gross & Leoni, Arthur G. Scotland; Downey Brand and Patrick G. Mitchell for Real Party in Interest and Appellant.

         John Buse, Adam Keats; Chatten-Brown and Carstens, Jan Chatten-Brown and Doug Carstens for Plaintiffs and Respondents Center for Biological Diversity, Friends of the Sara Clara River, Santa Clarita Organization for Planning and the Environment and California Native Plant Society.

         Jason Weiner; Chatten-Brown and Carstens, Jan Chatten-Brown and Doug Carstens for Plaintiffs and Respondents Wishtoyo Foundation/Ventura Coastkeeper.

         Opinion by Turner, P. J., with Kriegler and Baker, JJ., concurring.

          OPINION

          [204 Cal.Rptr.3d 664] TURNER, P. J.

         I. INTRODUCTION

         Defendant, Department of Fish and Wildlife (the department), and real party in interest, The Newhall Land and Farming Company (the developer), appeal from a judgment granting a mandate petition. The judgment, entered October 15, 2012, was granted in favor of plaintiffs Center for Biological Diversity; Friends of the Santa Clara River; Santa Clarita Organization for Planning the Environment; Wishtoyo Foundation/Ventura Coastkeeper; and California Native Plant Society. The litigation and appeal arise from the department's December 3, 2010 certification of the revised final environmental impact statement and impact report; approval of the Newhall Ranch Resource Management and Development Plan (resource management and development plan); the adoption of the Spineflower Conservation Plan and Master Streambed Alteration Agreement (streambed alteration agreement); and issuance of two incidental take permits. We issued an opinion reversing the October 15, 2012 judgment.

Page 456

( Center for Biological Diversity v. Department of Fish & Wildlife [*] (Cal.App.).) Our Supreme Court granted review and, after issuing an opinion, remanded the case to us. ( Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 241 [195 Cal.Rptr.3d 247');">195 Cal.Rptr.3d 247, 361 P.3d 342] ( Center for Biological Diversity ).)

         In the published portion of this opinion, we will discuss the developer's contention, concurred in by the department, that we should supervise compliance with a writ of mandate. As will be noted, the developer and the department argue we should in essence issue our own writ of mandate and then supervise compliance with our orders. This contention is based upon language appearing in Public Resources Code[1] section 21168.9, subdivision (a) and our Supreme Court's opinion. As will be noted, we conclude we do not have that authority since we are reviewing this case on direct appeal. Our disposition is to reverse the judgment in part and affirm it in part.

         II.-IV.[*]

         V. THE SCOPE OF OUR REMAND ORDER

         A. The Parties' Remand Arguments

          The trial court ruled that six aspects of the environmental impact report were deficient and entered a stay of any construction [204 Cal.Rptr.3d 665] on the project site. The trial court ruled the following errors appeared in the environmental impact report: the department failed to prevent the taking of the unarmored threespine stickleback as part of construction of a bridge over the Santa Clara River; the environmental impact report failed to assess the impact of project-related dissolved copper discharge when stormwaters breached the dry gap; the department's analysis of mitigation measures for the San Fernando Valley Spineflower was legally impermissible; the department's assessment of the

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project's greenhouse gas emissions were inadequate; the environmental impact reports assessment of the project's impact on Native American cultural resources was not supported by substantial evidence; and the environmental impact report improperly relied upon portions of the specific plan in rejecting alternatives to the project. We reversed in their entirety the trial court's findings as to the effects of dissolved copper runoff on steelhead smolt; the San Fernando Valley Spineflower preserves; Native American resources; and reliance upon the specific plan. We have reversed in part the trial court's greenhouse gas emission findings concerning selection of a criterion of significance and its application to a business as usual scenario. We have affirmed the trial court's greenhouse gas findings concerning the absence of substantial evidence ...


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