Center for Biological Diversity v. California Department of Fish and Wildlife ( 2017 )

Filed 12/4/17
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CENTER FOR BIOLOGICAL B280815
DIVERSITY et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS131347)
v.
CALIFORNIA DEPARTMENT OF
FISH AND WILDLIFE,
Defendant and Respondent;
THE NEWHALL LAND AND
FARMING COMPANY,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part III(A).
John Buse, Kevin Bundy and Aruna Prabhala; Chatten-
Brown and Carstens, Jan Chatten-Brown and Doug Carstens;
Frank G. Wells Environmental Law Clinic and Sean B. Hecht;
Wishtoyo Foundation/Ventura Coastkeeper and Jason A. Weiner;
Adam Keats, for Plaintiffs and Appellants Center for Biological
Diversity, Friends of the Santa Clara River, Santa Clarita
Organization for Planning and the Environment, California
Native Plant Society, Wishtoyo Foundation/Ventura Coastkeeper.
Office of the General Counsel, Wendy L. Bogdan and John
H. Mattox, Senior Staff Counsel; Thomas Law Group, Tina A.
Thomas, Amy R. Higuera and Meghan M. Dunnagan, for
Defendant and Respondent California Department of Fish and
Wildlife.
Gatzke Dillon & Ballance, Mark J. Dillon and David P.
Hubbard; Nielsen Merksamer Parinello Gross & Leoni and
Arthur G. Scotland; Morrison & Foerster and Miriam A. Vogel,
for Real Party in Interest and Respondent The Newhall Land and
Farming Company.
I. INTRODUCTION
This is the second appeal in this case, in which plaintiffs
brought a mandate petition challenging under the California
Environmental Quality Act (CEQA; Pub. Resources Code § 21000
et seq.) the environmental impact report (EIR) and related
project approvals for two natural resource plans for the proposed
Newhall Ranch development in northwest Los Angeles County. 1
1 After oral argument, Center for Biological Diversity,
California Native Plant Society and Wishtoyo
Foundation/Ventura Coastkeeper moved to dismiss their appeal
2
Our review is shaped by the first appeal, which resulted in an
opinion from our Supreme Court and our subsequent opinion on
remand.
In this appeal from the post-remand judgment, plaintiffs
argue that the judgment and accompanying writ were erroneous
under CEQA for two purely legal reasons: they claim that Public
Resources Code section 21168.9 2 prohibits partial decertification
of an EIR, and that the same section prohibits leaving project
approvals in place while decertifying an EIR. We hold that both
actions are legally permissible under CEQA. We thus affirm the
judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The first appeal was taken from a 2012 trial court
judgment, and a corresponding writ of mandate, that set aside
the Newhall Ranch project approvals, ordered defendant
California Department of Fish and Wildlife (the department) to
set aside its certification of the final EIR, and enjoined the
department and the developer from proceeding with any project
after they settled with respondents. We dismissed them from the
appeal on October 20, 2017. Thus, the only plaintiffs in this
appeal are Friends of the Santa Clara River and Santa Clarita
Organization for Planning and the Environment.
2 Further statutory references are to the Public Resources
Code unless otherwise specified.
3
activity. 3 In our first opinion in the matter, we reversed the
judgment in full. (Center for Biological Diversity v. Department of
Fish and Wildlife (Mar. 20, 2014, B245131) [nonpub. opn.],
review granted July 9, 2014, No. S217763 (Center for Biological
Diversity I).)
On review, our Supreme Court, reversing our ruling, held
that the Newhall Ranch’s EIR was deficient in two ways: its
finding that the project’s greenhouse gas emissions were
insignificant was “not supported by a reasoned explanation based
on substantial evidence”; and its measure of protecting a fish
species, the unarmored threespine stickleback, by capturing and
relocating it, was itself a prohibited taking of the protected
species under the Fish and Game Code. (Center for Biological
Diversity v. Department of Fish and Wildlife (2015) 62 Cal. 4th
204, 213, 231-232, 237.) Additionally, the Supreme Court
directed us to reexamine on the merits two claims of report
deficiencies that we had held were forfeited—the project’s impact
on Native American cultural resources, and the effect of the
project’s dissolved copper discharge on steelhead smolt. (Id. at p.
240.)
Following remand from the Supreme Court, on July 11,
2016, we issued a decision affirming in part and reversing in part
the original judgment on the mandate petition, with directions to
the trial court on remand. (Center for Biological Diversity v.
Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, 469
(Center for Biological Diversity II).) As to greenhouse gas
emission impact, applying the Supreme Court’s opinion, we
3 The developer is The Newhall Land and Farming
Company, which is the real party in interest and project
applicant.
4
directed the trial court “to enter a finding that there is no
substantial evidence the project’s greenhouse gas emissions will
not result in a cumulatively significant environmental impact.”
(Ibid.) As to the stickleback, also following the Supreme Court’s
directions, we affirmed the trial court’s finding that the
mitigation measures to protect that fish violated Fish and Game
Code section 5515. (Ibid.) Finally, where the trial court had
found deficiencies concerning Native American resources and the
steelhead smolt, we reversed after considerable analysis. (Ibid.)
The remainder of the EIR survived the appellate process.
In sum, we held that on remand the trial court was to
address only the greenhouse gas emission and stickleback issues,
which “will entail at the minimum setting aside those two
portions of the [EIR]. But beyond that, we leave further matters
in the trial court’s good hands. Whether to maintain the
injunction against any development in effect or partially certify
the environmental impact report depends on competing factual
issues including section 21168.9, subdivision (b) severance issues.
[Citations].” (Center for Biological Diversity II, supra, 1
Cal.App.5th at p. 469.)
After a hearing following the remand, the trial court
entered judgment on December 16, 2016 and issued a
corresponding peremptory writ of mandate on December 19,
2016. Following the terms of the remand, judgment was
rendered in favor of plaintiffs as to the greenhouse gas emission
and stickleback findings in the EIR. Judgment was rendered in
favor of the department and the developer as to all other issues.
The judgment further ordered that a peremptory writ of
mandate be issued directing the department to decertify the
portions of the EIR that address the significance of the project’s
5
greenhouse gas emissions, and the validity of the stickleback
mitigation measures. The judgment stated: “Consistent with the
Supreme Court’s opinion, all remaining portions of the EIR
comply with CEQA.” Accordingly, the writ directed the
department to void certification of portions of the EIR that
address the department’s determination regarding the
significance of the project’s greenhouse gas emissions and the
stickleback mitigation measures.
The judgment and writ also enjoined all project activity
including construction until the EIR was compliant with law.
Further, the department also was ordered to “suspend” two
project approvals that related directly to the EIR’s
determinations regarding the significance of the project’s
greenhouse gas emissions and stickleback mitigation measures,
but four other approvals were left in place because no action was
needed as to them “unless compliance with the Writ changes or
affects” them.
Plaintiffs appeal from the December 16, 2016 judgment. 4
III. DISCUSSION
[Part III(A) is deleted from publication. See post at page 9
where publication is to resume.]
A. An Appeal from the Writ Was Not Required
We first address the respondents’ contention that we lack
jurisdiction to consider the writ because the appeal is only from
4 On March 23, 2017, the department and developer filed
motions to dismiss the appeal as frivolous. We deny the motions
to dismiss.
6
the judgment, not from the writ. They assert this is so because
the writ is a separate appealable postjudgment order under Code
of Civil Procedure section 904.1, subdivisions (a)(1) and (a)(2).
The developer also argues the writ is a separate appealable order
because it is injunctive. We disagree that an appeal from the
writ was necessary here.
We reject respondents’ contention that the writ is a
separate appealable postjudgment order. Code of Civil Procedure
section 904.1, subdivision (a)(2) provides for an appeal from an
order made after a judgment. Although the language of Code of
Civil Procedure section 904.1, subdivision (a)(2) is broad, “not
every postjudgment order that follows a final appealable
judgment is appealable.” (Lakin v. Watkins Associated Industries
(1993) 6 Cal. 4th 644, 651 (Lakin); Macaluso v. Superior Court
(2013) 219 Cal. App. 4th 1042, 1047.) “The first requirement . . . is
that the issues raised by the appeal from the order must be
different from those arising from an appeal from the judgment.”
(Lakin, supra, 6 Cal.4th at p. 651.) “The second requirement . . .
is that ‘the order must either affect the judgment or relate to it by
enforcing it or staying its execution.’ [Citation.]” (Id. at pp. 651-
652.) The first requirement is not met here because the writ does
not raise issues different from those arising from an appeal of the
judgment.
Here, although the writ was issued after the judgment, the
judgment was in substance one granting a writ that simply
carried out the judgment in a manner that did not exceed its
terms. (Endangered Habitats League, Inc. v. State Water
Resources Control Bd. (1997) 63 Cal. App. 4th 227, 244 [CEQA
case where writ was ministerial order issued by clerk following
judgment].) The judgment and writ here arose from a hearing in
7
which the parties argued both of them, and the trial court
simultaneously ordered both issued. The writ appears to have
been issued on a later date only because the trial court ordered a
party to make an edit to a proposed version of it. The terms of
the judgment incorporated the writ, ordering that “[a]
peremptory writ of mandate be issued” and directing its
particular content. Should we reverse the judgment, the writ
issued pursuant to it would be vacated and without effect.
An appeal from the judgment granting a writ necessarily
challenges the writ issued pursuant to that judgment. “When the
trial court issues its judgment granting a peremptory writ, the
respondent has two choices: to appeal that judgment or to
comply with it. If the respondent elects to comply with the writ,
it waives its right to appeal from the judgment granting the writ
petition.” (Los Angeles Internat. Charter High School v. Los
Angeles Unified School Dist. (2013) 209 Cal. App. 4th 1348, 1354;
accord, City of Carmel-by-the-Sea v. Board of Supervisors (1982)
137 Cal. App. 3d 964, 970.) No separate appeal of the writ is
required because the writ is the remedy provided by the
judgment granting the writ.
The developer further argues the writ is injunctive in
nature and thus it is an injunctive order appealable under Code
of Civil Procedure section 904.1, subdivision (a)(6). But the
judgment itself orders the injunction, stating that “[n]o Project
activity (including construction) shall commence” until corrective
action is taken. None of the cases relied upon by the developer
involve a writ directed by a judgment granting the writ. Because
this court has jurisdiction to consider plaintiffs’ challenge to the
judgment, that jurisdiction includes the ability to consider the
writ issued pursuant to that judgment’s terms.
8
[The balance of the opinion is to be published.]
B. A Trial Court Has Authority to Partially Decertify an EIR
We turn to plaintiffs’ first legal challenge. The judgment
directs the department to decertify only the portions of the EIR
that address greenhouse gas emissions and stickleback
mitigation measures, rather than the entire EIR, and the writ
implements that partial decertification order. Plaintiffs argue
that “CEQA permits no such middle ground” between full
decertification and no decertification. Plaintiffs claim: “Nothing
in CEQA supports the concept of a partially adequate EIR. An
EIR can either be certified as ‘complete’ under CEQA or not.”
Plaintiffs are correct that an agency initially must certify
an entire EIR before approving a project. (Cal. Code Regs.,
tit. 14, § 15004, subd. (a) (Guidelines) [“Before granting any
approval of a project subject to CEQA, every lead agency . . . shall
consider a final EIR . . . .”]; Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal. 3d 376, 394
(Laurel Heights).) However, a court has additional options once it
has found an agency’s EIR certification noncompliant. Section
21168.9 governs the writ of mandate that a court issues after
“trial, hearing, or remand from an appellate court” to remedy a
CEQA violation. (Save Our Schools v. Barstow Unified School
Dist. Bd. of Education (2015) 240 Cal. App. 4th 128, 144; Preserve
Wild Santee v. City of Santee (2012) 210 Cal. App. 4th 260, 286
(Preserve Wild Santee).) We review a trial court’s interpretation
of section 21168.9 de novo. (Golden Gate Land Holdings LLC v.
East Bay Regional Park Dist. (2013) 215 Cal. App. 4th 353, 368
9
(Golden Gate); Preserve Wild Santee, supra, 210 Cal.App.4th at p.
287.)
Section 21168.9, subdivision (a) clearly allows a court to
order partial decertification of an EIR following a trial, hearing,
or remand. 5 The section applies when a court finds that “any
determination, finding, or decision of a public agency” is non-
compliant. (§ 21168.9, subd. (a) [emphasis added]). After making
such a finding, “the court must enter an order, in the form of a
peremptory writ of mandate, containing one or more of three
specified mandates. (§ 21168.9, subds. (a) & (b).)” (Preserve Wild
Santee, supra, 210 Cal.App.4th at p. 286.) One of those three
mandates is voiding the agency determination “in whole or in
part.” (§ 21168.9, subd. (a)(1).) When a court voids an agency
5 Section 21168.9, subdivision (a) provides: “(a) If a court
finds, as a result of a trial, hearing, or remand from an appellate
court, that any determination, finding, or decision of a public
agency has been made without compliance with this division, the
court shall enter an order that includes one or more of the
following: [¶] (1) A mandate that the determination, finding, or
decision be voided by the public agency, in whole or in part. [¶]
(2) If the court finds that a specific project activity or activities
will prejudice the consideration or implementation of particular
mitigation measures or alternatives to the project, a mandate
that the public agency and any real parties in interest suspend
any or all specific project activity or activities, pursuant to the
determination, finding, or decision, that could result in an
adverse change or alteration to the physical environment, until
the public agency has taken any actions that may be necessary to
bring the determination, finding, or decision into compliance with
this division. [¶] (3) A mandate that the public agency take
specific action as may be necessary to bring the determination,
finding, or decision into compliance with this division.”
10
determination “in part,” it must make severance findings
pursuant to section 21168.9, subdivision (b), to determine
whether the voided portions are severable, and whether the
remainder will be in full compliance with CEQA. 6 As an EIR
certification is an agency determination, it may be voided in part
by a trial court following such findings.
Our view is in accord with Preserve Wild Santee, supra, 210
Cal.App.4th at page 288: “[A] reasonable, commonsense reading
of section 21168.9 plainly forecloses plaintiffs’ assertion that a
trial court must mandate a public agency decertify the EIR and
void all related project approvals in every instance where the
court finds an EIR violates CEQA. Such a rigid requirement
directly conflicts with the ‘in part’ language in section 21168.9,
subdivision (a)(1), which specifically allows a court to direct its
mandates to parts of determinations, parts of findings, or parts of
6 Section 21168.9, subdivision (b) provides: “Any order
pursuant to subdivision (a) shall include only those mandates
which are necessary to achieve compliance with this division and
only those specific project activities in noncompliance with this
division. The order shall be made by the issuance of a
peremptory writ of mandate specifying what action by the public
agency is necessary to comply with this division. However, the
order shall be limited to that portion of a determination, finding,
or decision or the specific project activity or activities found to be
in noncompliance only if a court finds that (1) the portion or
specific project activity or activities are severable, (2) severance
will not prejudice complete and full compliance with this division,
and (3) the court has not found the remainder of the project to be
in noncompliance with this division. The trial court shall retain
jurisdiction over the public agency’s proceedings by way of a
return to the peremptory writ until the court has determined that
the public agency has complied with this division.”
11
decisions. Such a rigid requirement also conflicts with the
language in section 21168.9, subdivision (b), limiting the court’s
mandates to only those necessary to achieve CEQA compliance
and, if the court makes specified findings, to only ‘that portion of
a determination, finding, or decision’ violating CEQA.” (Accord,
Golden Gate, supra, 215 Cal.App.4th at p. 376.)
Allowing for the partial decertification of an EIR
effectuates the statute’s purpose. “Section 21168.9 was enacted
in 1984 to give the trial courts some flexibility in tailoring a
remedy to fit a specific CEQA violation.” (San Bernardino Valley
Audubon Society v. Metropolitan Water Dist. (2001) 89
Cal. App. 4th 1097, 1103 (San Bernardino Valley Audubon
Society).)
Plaintiffs’ restrictive view of section 21168.9 derives from
LandValue 77, LCC v. Board of Trustees of California State
University (2011) 193 Cal. App. 4th 675, 681-682 (LandValue).
Plaintiffs argue that case “ruled conclusively that partial
decertification is not consistent with the role of the EIR in the
CEQA process.” LandValue, however, expressly addressed a
situation where the trial court did not properly make severance
findings under section 21168.9, subdivision (b). (Id. at p. 681.) It
relied on a section of a treatise addressing section 21168.9 “when
the project has not been severed” and that stated a rule that was
“‘[i]n contrast to a case where severance is proper. . . .’” (Ibid.)
Thus, LandValue does not prohibit partially setting aside an EIR,
so long as a court makes severance findings under section
21168.9, subdivision (b). In their reply brief, plaintiffs also rely
on Bakersfield Citizens for Local Control v. City of Bakersfield
(2004) 124 Cal. App. 4th 1184, 1221 (Bakersfield Citizens).
Without discussion of section 21168.9, that case required an
12
agency to decertify an entire EIR, but, as in LandValue, there
were no “severable aspects of the projects.” (Bakersfield Citizens,
supra, 124 Cal.App.4th at p. 1221.)
We note that, in our July 11, 2016 opinion, we effectively
ruled that, with proper findings, it would be permissible to
partially decertify the EIR. After stating that on remand the
trial court was to address only the greenhouse gas emission and
stickleback mitigation issues, we noted that “[t]his will entail at a
minimum setting aside those portions of the [EIR]. But beyond
that, we leave further matters in the trial court’s good hands.
Whether to maintain the injunction against any development in
effect or partially certify the [EIR] depends on competing factual
issues including section 21168.9, subdivision (b) severance issues.
[Citations].” (Center for Biological Diversity II, supra, 1
Cal.App.5th at pp. 455, 469.) The Supreme Court, likewise, did
not order the EIR decertified in its entirety even though it found
portions of it noncompliant; instead, it ordered: “The Court of
Appeal shall further decide, or remand for the superior court to
decide, the parameters of the writ of mandate to be issued. (See §
21168.9.)” (Center for Biological Diversity, supra, 62 Cal.4th at p.
240.)
Under section 21168.9, subdivision (a)(1), a court has
authority to order partial decertification of an EIR so long as the
severability criteria pursuant to subdivision (b) of that section
are satisfied. The trial court exercised that authority here.
13
C. A Trial Court Has the Power to Leave Some Project Approvals
in Place After Partial Decertification of an EIR
Plaintiffs’ second legal challenge is to the trial court’s
authority to leave some project approvals in place even though
the EIR was partially decertified. The trial court’s writ stated
that portions of only two of the department’s project approvals
“directly relate” to the EIR’s greenhouse gas emissions analysis
and the stickleback mitigation measures; “accordingly, only these
two approvals need to be corrected. All other Project approvals
were based on [unaffected] portions of the EIR . . . and no
remedial action is required unless compliance with the Writ
changes or affects previous Project approvals.”
Plaintiffs argue that leaving an agency’s project approvals
in place after decertifying an EIR makes the environmental
analysis “nothing more than a post hoc rationalization of its
existing approvals,” an approach proscribed by CEQA. We agree
an agency initially must certify an EIR prior to approval of a
project. (Guidelines, § 15004, subd. (a); Laurel Heights, supra, 47
Cal.3d at p. 394.) However, as we discussed earlier in holding
that a court has power to partially void an EIR, a trial court has
authority under section 21168.9 to order an agency’s
determination be voided “in whole or in part.” In our view, this
language allows for the possibility of leaving some project
approvals in place when an EIR is partially decertified. Under
section 21168.9, subdivision (b), the court is required to order
“only those mandates which are necessary to achieve compliance
with this division and only those specific project activities in
noncompliance with this division.” Thus, if the court finds that it
14
will not prejudice full compliance with CEQA to leave some
project approvals in place, it must leave them unaffected.
The requirement of severability findings serves to ensure
that the approvals that remain in place will not obstruct CEQA
compliance. (Preserve Wild Santee, supra, 210 Cal.App.4th at p.
288 [section 21168.9, subdivision (b) “forecloses plaintiffs’
assertion that a trial court must mandate a public agency
decertify the EIR and void all related project approvals in every
instance where the court finds an EIR violates CEQA”]; San
Bernardino Valley Audubon Society, supra, 89 Cal.App.4th at pp.
1104-1105 [“[S]ection 21168.9 . . . ‘expressly authorizes the court
to fashion a remedy that permits some part of the project to go
forward while an agency seeks to remedy its CEQA violations.’”];
see also Laurel Heights, supra, 47 Cal.3d at p. 424 [university
may continue operations already begun but may not expand
existing operations until a new EIR is certified].)
Indeed, while the Legislature enacted section 21168.9 in
1984 to give the trial courts flexibility in tailoring CEQA
remedies, it amended the statute in 1993 to expand “the trial
court’s authority and ‘expressly authorized the court to fashion a
remedy that permits some part of the project to go forward while
an agency seeks to remedy its CEQA violations. In other words,
the issuance of a writ need not always halt all work on a project.’”
(San Bernardino Valley Audubon Society, supra, 89 Cal.App.4th
at pp. 1104-1105.)
Neither the Supreme Court opinion nor our July 11, 2016,
opinion ordered the trial court to set aside all project approvals.
Instead, it was left to the trial court to decide “the parameters of
the writ of mandate to be issued.” (Center for Biological
Diversity, supra, 62 Cal.4th at p. 240; accord Center for Biological
15
Diversity II, supra, 1 Cal.App.5th at p. 469 [“we leave further
matters in the trial court’s good hands”].) Under section 21168.9,
the trial court has the authority to leave some project approvals
in place when decertifying portions of an EIR, so long as it
appropriately finds the portions severable under section 21168.9,
subdivision (b). This is the authority that the trial court
exercised here.
D. The Trial Court Did Not Abuse Its Discretion in Issuing the
Limited Writ
Our analysis in the two preceding sections concerns the
trial court’s authority to make severability findings and thus set
aside only part of an EIR and leave in place some project
approvals. Plaintiffs, however, also challenge the trial court’s
exercise of its authority here. We review for abuse of discretion.
(Golden Gate, supra, 215 Cal.App.4th at p. 368; Preserve Wild
Santee, supra, 210 Cal.App.4th at p. 287.)
Under the terms of section 21168.9, subdivision (b), the
trial court must “include only those mandates which are
necessary to achieve compliance” with CEQA. It is to exclude a
portion of an EIR or an approval only if it “finds that (1) the
portion or specific project activity or activities are severable, (2)
severance will not prejudice complete and full compliance with
this division, and (3) the court has not found the remainder of the
project to be in noncompliance with this division.”
At the outset of the December 16, 2016, hearing on remand,
the trial court laid out these severability factors and determined
that the third factor was satisfied because the project, other than
greenhouse gas analysis and stickleback mitigation measures,
16
was found to be in compliance. After argument, the court
indicated that the other two factors were covered by the
respondents’ proposal “to suspend any project activity, including
construction.” The court stated: “when I approve a writ that
says, basically, suspend any project activity that could result in
adverse change or alteration unless and until the Department
takes corrective action to address the two EIR
deficiencies . . . . That’s pretty specific. There’s no way for them
to cheat.” The court edited the proposed writ to include language
intended to ensure that the court could review the approvals
again if “compliance with this writ changes or affects the
previous approvals.”
Accordingly, in the judgment, the court ordered all work on
the project suspended until the EIR was compliant: “No Project
activity (including construction) shall commence unless and until
Respondent completes corrective action to address the[] two
deficiencies in Respondent’s EIR and Respondent has complied
with CEQA, Fish and Game Code section 5515, and this Court’s
Writ.” Likewise, consistent with the mandate available through
section 21168.9, subdivision (a)(2), the writ ordered the
department “[t]o suspend any Project activity (including
construction) that could result in an adverse change or alteration
to the physical environment unless and until the Department
takes corrective action to address the two EIR deficiencies
identified above and complies with CEQA, Fish and Game Code
section 5515, and this Writ (§ 21168.9, subd. (a)(2)).”
In support of its action, the trial court made the following
severability findings in the writ: “Only portions of the first two of
the Project approvals—the CEQA Findings of Fact and
Statement of Overriding Considerations and Mitigation
17
Monitoring and Reporting Plan 7—directly relate to the EIR’s
greenhouse gas emissions analysis and [stickleback] mitigation
measures []; accordingly, only these two approvals need to be
corrected. All other Project approvals were based on portions of
the EIR that were not affected by the Supreme Court decision
and no remedial action is required unless compliance with this
Writ changes or affects previous Project approvals. [¶]
Severance of the non[]complaint Project approvals from the other
Project approvals will not prejudice complete and full compliance
with CEQA or Fish and Game Code section 5515 because, as
required above, no Project activity (including construction) that
could result in an adverse change or alteration to the physical
environment is allowed under this Writ unless and until the
Department takes corrective action to address the two EIR
deficiencies identified above and the Department has complied
with CEQA, Fish and Game Code section 5515, and this Writ.
The remainder of the Project, the Project approvals, and the
7 We need not resolve plaintiffs’ argument that the CEQA
Findings of Fact and Statement of Overriding Considerations and
the Mitigation Monitoring and Reporting Plan are not “project
approvals,” as plaintiffs’ overall argument is that the trial court
should have voided the approvals left in place, not that the trial
court erred in suspending the two purported approvals that it
did. By directing the department to correct these purported
approvals, the trial court suspended the CEQA process, and thus
the project, until the department made these corrections.
(§ 21081 & Guidelines, § 15091, subd. (a) [CEQA findings];
§ 21081.6, subd. (a)(1) & Guidelines, § 15097 [mitigation
monitoring or reporting program]; & Guidelines, § 15093
[statement of overriding considerations].)
18
subject EIR were not found to violate CEQA or the Fish and
Game Code (§ 21168.9, subd. (b)).”
We agree that these severability findings satisfied section
21168.9, subdivision (b). The result of the first appeal was that
the EIR was compliant except for its portions concerning
greenhouse gas analysis and stickleback mitigation. By
suspending all project activity that “could result in an adverse
change or alteration to the physical environment,” the entire
project was effectively put on hold. The trial court thus ensured
that the status quo would be preserved for the department to
reanalyze the parts of the EIR found inadequate. For example, if
the greenhouse gas emission impact is significant, the
department can require feasible mitigation measures and enforce
them through permit conditions and agreements, or incorporate
them into a plan or project design. (§ 21081.6, subd. (b);
Guidelines, §§ 15040, subd. (c), 15041, subd. (a).) 8 The status quo
8 The department requests judicial notice of the “Final
Actions and Supplemental Findings of the California Department
of Fish and Wildlife for the Newhall Ranch Resource
Management and Development Plan and Spineflower
Conservation Plan,” approved on June 14, 2017. The department
argues this document is relevant to show it conducted additional
environmental review in response to the writ and reapproved the
project. We deny the department’s request for judicial notice
because the document was not before the trial court. (Center for
Biological Diversity v. Department of Fish & Wildlife (2015) 234
Cal. App. 4th 214, 227, fn. 4.) Furthermore, the document is not
relevant to the disposition of this appeal as we need not reach
post-writ matters. (Defend Our Waterfront v. State Lands Com.
(2015) 240 Cal. App. 4th 570, 591; Golden Gate, supra, 215
Cal.App.4th at p. 366 [“Only relevant evidence is admissible by
judicial notice.”].)
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also would be preserved for the trial court to make any orders
necessary for complete enforcement of the writ, which could
include orders to revisit other portions of the EIR or project
approvals in the event changes (such as mitigation measures) to
address greenhouse gases and the stickleback had unanticipated
adverse effects on other portions of the project.
Plaintiffs cite Olive Proration Etc. Com. v. Agri. Etc. Com.
(1941) 17 Cal. 2d 204, 209 and argue that with the approvals left
in place, principles of res judicata leave the department with no
discretion to revisit its prior approvals. But for an agency action
on an EIR after it has been partially decertified and then revised,
we think it clear that “the legislature intended that the agency
should exercise a continuing jurisdiction with power to modify or
alter its orders to conform to changing conditions, [so] the
doctrine of res judicata is not applicable.” (Ibid.; George
Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989)
49 Cal. 3d 1279, 1290-1291 [administrative proceeding may be
reopened to allow litigation of intervening change of law];
Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control
(1961) 55 Cal. 2d 728, 732 [“‘much administrative action should be
subject to a qualified or relaxed set of rules concerning res
judicata’”].)
Indeed, the writ itself permits the department to reconsider
prior project approvals: “All other Project approvals were based
on [unaffected] portions of the EIR . . . and no remedial action is
required unless compliance with this Writ changes or affects
previous Project approvals.” At the hearing on remand, the trial
court stated that both it and the department could revisit prior
project approvals if necessary: “[A]nything that goes on with the
[stickleback and greenhouse gas issues] spills over into these
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other approvals, then I would have to look at them again. That
[i.e., the language in the writ] gives them discretion to do so.”
Just as the department can review prior project approvals,
section 21168.9, subdivision (b) empowers the trial court to
“retain jurisdiction over the public agency’s proceeding by way of
a return to the peremptory writ” until the court has determined
the agency has complied with CEQA.
Consequently, plaintiffs have provided us no convincing
reason to conclude that the trial court abused its discretion by not
setting aside all project approvals where it suspended all project
activity pending correction of the EIR.
E. The Writ Provides an Adequate Remedy for the Fish and Game
Code Section 5515 Violation
Plaintiffs contend section 21168.9 does not govern the
remedy for the department’s violation of Fish and Game Code
section 5515 in erroneously approving the stickleback mitigation
measures. We agree section 21168.9 applies to CEQA violations,
not violations under the Fish and Game Code. But there is no
reason to conclude that the judgment and writ must suspend
every project approval in order to ensure compliance with the
Fish and Game Code. The department’s obligation to avoid the
taking of stickleback does not affect the entire project, and in
particular does not implicate the most relevant project approval,
the streambed alteration agreement. The streambed alteration
agreement prohibits the taking of stickleback: “This
Agreement . . . does not authorize the take of any species
protected under the state or federal Endangered Species Act, or
other state or federal laws.”
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Furthermore, for the same reasons that the writ is
appropriate to remedy the CEQA violation, the writ provides a
suitable remedy for the Fish and Game Code section 5515
violation and follows the Supreme Court’s ruling and our remand
instruction. The writ suspends portions of the CEQA Findings of
Fact and Statement of Overriding Considerations and the
Mitigation Monitoring and Reporting Plan relating to the
stickleback mitigation measures, and suspends all project activity
until the department develops alternatives to these mitigation
measures. These writ remedies ensure compliance with Fish and
Game Code section 5515 by prohibiting the taking of stickleback.
IV. DISPOSITION
We affirm the December 16, 2016 judgment. Defendant
and real party in interest shall recover their costs on appeal from
plaintiffs.
CERTIFIED FOR PARTIAL PUBLICATION
RAPHAEL, J. ∗
We concur:
KRIEGLER, Acting P.J. BAKER, J.
∗ Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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