While many of us were busy hitting refresh for those great Cyber Monday deals, the California Supreme Court quietly issued its decision on the Newhall Ranch project. In a decision reminiscent of the snail darter era, the Court held that “fully protected fish” are just that — fully protected under California law from all forms of incidental “take” resulting from a development project. The Court also found that project opponents had exhausted their administrative remedies by submitting comments during an “optional comment period.” Further, the Court found inadequacies in the “business-as-usual” analysis of GHG impacts from the project. Stay tuned for a post later this week from one of my air quality colleagues on the implications of the GHG analysis.
I won’t bore you with the long history of this litigation again and again, but in 2010 the California Department of Fish and Wildlife (CDFW) issued an incidental take permit and master streambed alteration agreement to facilitate the build out of the Newhall Ranch project, a mixed-use development project on nearly 12,000 acres in LA County. Permitting and litigation for the project has been ongoing for over 15 years.
The opposition’s battle cry has consistently been the project’s potential negative impacts to multitudes of fauna and flora. The showdown before the Court, however, involved only one tiny fish: the unarmored threespine stickleback (stickleback). While the name may not scream “poster species,” the stickleback has “fully protected” status under California law. Consequently, the California Fish & Game Code prohibits the “take” of stickleback, i.e. a person may not “hunt, pursue, catch, capture, or kill” or attempt any of those actions.
The Court concluded that the Newhall Ranch project would “take” stickleback because project mitigation measures required the “collection and relocation” of stranded stickleback. Ultimately, the Court could not harmonize these mitigation measures with the specific references to “pursue,” “catch” and “capture” in the definition of “take,” which arguably are just another way to say “collection and relocation.” Further, other specific language in the Fish & Game Code prohibits “take” of fully protected species for CEQA mitigation involving scientific research and the legislative history of that language strengthened the Court’s resolve to strictly interpret the “take” prohibition in this context.
At the end of the day, this decision may have very little impact on the status quo for permitting with fully protected species in the mix. CDFW’s “collection and relocation” approach does not appear to have been widely used by CDFW on other projects or by other lead agencies when permitting projects with the potential to take fully protected species. Instead, the decision affirms a harsh reality that has always existed with fully protected species — avoidance is really the only option for most projects.
Of course, the Newhall Ranch project is not like most projects. While the stickleback may have lived to fight another day, its victory may be short-lived. In 2011, the State Legislature authorized CDFW to permit the incidental take of fully protected species pursuant to natural community conservation plans. While those plans typically provide for the regional protection of plants and animals, the size and level of mitigation required for the Newhall Ranch project may make it an ideal candidate for this type of plan. But don’t hold your breath waiting for this to all unfold — at its current pace, the next chapter in this saga may yet again not conclude for another 15 years.