Ctr. for Biological Diversity v. Cal. Dep't of Fish & Wildlife
Ctr. for Biological Diversity v. Cal. Dep't of Fish & Wildlife
Opinion of the Court
*1249I. 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.
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
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, *1250ordered 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 activity.
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)
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)
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 *1251injunction against any development in effect or partially certify the environmental impact report depends on competing factual issues including *435section 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 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.
III. DISCUSSION
A. An Appeal from the Writ Was Not Required .
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 *1252gas 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)
Section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand.
Our view is in accord with Preserve Wild Santee, supra , 210 Cal.App.4th at page 288,
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)
Plaintiffs' restrictive view of section 21168.9 derives from LandValue 77, LLC v. Board of Trustees of California State University (2011)
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,
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 *438(b) of that section are satisfied. The trial court exercised that authority here.
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 *1255[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,
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,
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 *1256the trial court to decide "the parameters of the writ of mandate to be issued." ( *439Center for Biological Diversity, supra , 62 Cal.4th at p. 240,
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,
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, 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 *1257construction) 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 Monitoring *440and Reporting Plan
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 *1258change 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).)
Plaintiffs cite Olive Proration Etc. Com. v. Agri. Etc. Com. (1941)
Indeed, the writ itself permits the department to reconsider prior project approvals: "All other Project approvals were based on [unaffected]
*1259portions 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 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."
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 *442to 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. *1260IV. DISPOSITION
We affirm the December 16, 2016 judgment. Defendant and real party in interest shall recover their costs on appeal from plaintiffs.
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.
After oral argument, Center for Biological Diversity, California Native Plant Society and Wishtoyo Foundation/Ventura Coastkeeper moved to dismiss their appeal 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.
Further statutory references are to the Public Resources Code unless otherwise specified.
The developer is The Newhall Land and Farming Company, which is the real party in interest and project applicant.
On March 23, 2017, the department and developer filed motions to dismiss the appeal as frivolous. We deny the motions to dismiss.
See footnote *, ante.
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."
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."
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].)
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)
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