California Court of Appeals, Second District, Fifth Division
CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Respondents,
DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant; THE NEWHALL LAND AND FARMING COMPANY, Real Party in Interest and Appellant
FOR PARTIAL PUBLICATION[*]]
modified Aug. 10, 2016.
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.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
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.
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.
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.
Weiner; Chatten-Brown and Carstens, Jan Chatten-Brown and
Doug Carstens for Plaintiffs and Respondents Wishtoyo
by Turner, P. J., with Kriegler and Baker, JJ., concurring.
Cal.Rptr.3d 664] TURNER, P. J.
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.
( 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 ).)
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 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.
THE SCOPE OF OUR REMAND ORDER
The Parties' Remand Arguments
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
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