California Supreme Court Ponders Fully Protected Species Issues

On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.)  The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County.  The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act (CEQA) allowed the Department to adopt a greenhouse gas threshold of significance based on the Business as Usual methodology adopted by the California Air Resources Board in its A.B. 32 Scoping Plan,  (2) whether the Department’s measures requiring the collection and transplantation of a fully protected fish (the unarmored threespine stickleback) to avoid project impacts is take in violation of the state law prohibition on take of a fully protected species, and (3) whether CEQA restricts judicial review to issues raised prior to the close of comments on a draft EIR.

With respect tot he fully protected species issue, the Court is attempting to determine whether the Department complied with the California Fish and Game Code's prohibition on the "take" of fully protected species when the Department approved conservation measures allowing for the collection and transplantation of the unarmored threespine stickleback from the project site to other suitable areas of the Santa Clara River by a biologist licensed to perform such activities.  Complicating matters, the particular fully protected fish species at issue is listed under both the California Endangered Species Act and the Federal Endangered Species Act, which both allow for collection and transplantation to occur for conservation purposes.  The Justices’ questions and comments did not suggest a clear majority position on this issue. Justices Cuéllar and Liu posed challenging questions to counsel for both sides.  Justice Cuéllar suggested that the Court should defer to the Department unless the Department’s interpretation is clearly wrong. He later suggested, however, that the Court should interpret each term in the definition of take in the Fish and Game Code to have independent meaning.  Justice Liu suggested that the Department’s collection and transplantation measure qualified as an allowable conservation measure in the Fish and Game Code (and therefore was not take), but later implied that the measure constituted take.  The Chief Justice and Justice Werdegar expressed concern regarding the practical impact of a decision that state law prohibits conservation measures meant to protect the stickleback and other such fully protected species because the conservation measures themselves constitute take.

For discussion of the additional issues the Court is contemplating, please refer to our E-Alert on the case.  The Court is expected to issue its decision in the case by early December 2015.

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

  • Robert D. Thornton
    Partner

    Robert Thornton specializes in advising state and regional infrastructure authorities on environmental issues regarding large infrastructure projects.  He has successfully defended more than $12 billion in regional ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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