On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. California Department of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015). The decision comes at the conclusion of a nearly five-year legal battle over the California Department of Fish and Wildlife’s (“CDFW”) approval of an environmental impact report (“EIR”) for the Newhall Ranch development project (“Newhall Ranch”) in Los Angeles County. Newhall Ranch was approved as a mixed-use development on nearly 12,000 acres of land along the Santa Clarita River. CDFW served as the lead agency under the California Environmental Quality Act (“CEQA”).

One of the three issues on which the Supreme Court granted review was whether conservation measures included in an EIR for potential impacts to a fully protected state species constitute “take” under the California fully protected species laws. (Fish & Game Code, §§ 3511, 4700, 5050, 5515.) The fully protected species laws prohibit possession or take of the species listed thereunder, except in connection with scientific study. This differs from the California Endangered Species Act (“CESA”), which allows possession or take in connection with conservation measures, such as collection and relocation of protected species.

Fully Protected Species Issue. The Newhall Ranch EIR, recognizing the project’s potential to cause significant impacts to a fully protected fish species, the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni), adopted multiple mitigation measures, including allowing U.S. Fish and Wildlife Service personnel or their authorized agents to collect and relocate special status fish to avoid harm to the species. Adopting the Plaintiffs’ reading of the law, the Court ruled that Fish & Game Code section 5515’s prohibition on the taking of fully protected fish species included “take” by means of avoidance or conservation measures that are specified in an EIR. In so finding, the Court rejected the Court of Appeal’s attempt to harmonize the fully protected species statutes with CESA’s contemplation of collection performed for conservation purposes. Complicating the Court’s ruling, the majority notes that although collection and relocation measures may not be undertaken as mitigation for a project, they may (and indeed should) be undertaken by CDFW as part of ongoing scientific studies to help protect and promote recovery of the species.

In a turn from her questions at oral argument (previously reported here), Justice Werdegar’s opinion barely seems to acknowledge the contradictory nature of this ruling. The majority’s reasoning hinges on semantics - collection and relocation of fully protected species can be undertaken as part of scientific studies, just not as “mitigation.” Justice Chin calls out this contradiction in his dissent - noting that it makes conservation measures legal in one context, but illegal if undertaken as mitigation. More conventional compliance strategies, such as designing a project to avoid take entirely, were left untouched by the Court.

Nossaman filed an amicus brief in this case on behalf of several water and transportation agencies.