Filed 3/20/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CENTER FOR BIOLOGICAL 

DIVERSITY et al.,

Plaintiffs and Respondents,

v.

DEPARTMENT OF FISH AND 

WILDLIFE,

Defendant and Appellant;

THE NEWHALL LAND AND FARMING 

COMPANY,

Real Party in Interest and Appellant.

 B245131

 (Super. Ct. No. BS131347)

 

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. 

Jones, Judge. Reversed with directions.

Office of the General Counsel, Thomas R. Gibson, General Counsel and John H. 

Mattox, Senior Staff Counsel; Thomas Law Group, Tina A. Thomas, Ashle T. Crocker 

and Amy R. Higuera, for Defendant and Appellant Department of Fish and Wildlife.

Gatze Dillon & Balance, Mark J. Dillon and David P. Hubbard; Morrison & 

Foerster and Miriam A. Vogel; Nielsen Merksamer Parinello Gross & Leoni and Arthur 

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110 this opinion is 

certified for publication except for part IV(G). 
G. Scotland; and Downey Brand and Patrick G. Mitchell, for Real Party in Interest and 

Appellant The Newhall Land and Farming Company.

John Buse and Adam Keats; Chatten-Brown and Carstens, Jan Chatten-Brown and 

Doug Carstens, for Plaintiffs and Respondents Center for Biological Diversity, Friends of 

the Sara Clara River, Santa Clarita Organization for Planning and the Environment, and 

California Native Plant Society.

Jason Weiner; Chatten-Brown and Carstens, Jan Chatten-Brown and Doug 

Carstens, for Plaintiffs and Respondents Wishtoyo Foundation/Ventura Coastkeeper.
2

I. INTRODUCTION

Defendant, California Department of Fish and Wildlife (the department), and real 

party in interest, The Newhall Land and Farming Company (the developer), appeal from 

a judgment granting a mandate petition. The judgment, entered October 15, 2012, was 

granted in favor of plaintiffs: Center for Biological Diversity; Friends of the Santa Clara 

River; Santa Clarita Organization for Planning the Environment; Wishtoyo 

Foundation/Ventura Coastkeeper; and California Native Plant Society. The litigation and 

appeal arise from the department’s December 3, 2010: certification of the revised final 

environmental impact statement and impact report; approval of the Newhall Ranch 

Resource Management and Development Plan (resource management plan); the adoption 

of the Spineflower Conservation Plan (conservation plan) and Master Streambed 

Alteration Agreement (streambed alteration agreement); and issuance of two incidental 

take permits. 

The environmental impact statement and report and other documents were jointly 

prepared by the department and the Army Corps of Engineers (the corps). For reasons 

we will explain, both federal and state environmental review were necessitated for the 

project. For clarity’s sake, the environmental impact statement and report will be 

referred to as the environmental impact report as we are only reviewing the relevant state 

law issues. 

For environmental impact report purposes, there are two components to the 

project. First, the environmental impact report assesses the effect of the resource 

management plan. The resource management plan includes the streambed alteration 

agreement. And the resource management plan necessarily resulted in the required 

issuance of two incidental take permits. Second, the environmental impact report 

evaluates the effects on the environment of the conservation plan. Both the resource 

management and conservation plans are stand-alone planning documents. We reverse.
3

II. FACTUAL MATTERS

A. Newhall Ranch Specific Plan (the specific plan)

On March 23, 1999, the County of Los Angeles Board of Supervisors (the county)

specific plan: approved a final environmental impact report; adopted findings; approved 

a mitigation plan; and approved various aspects of the proposed development. For 

environmental review purposes, the project included a water reclamation plant. None of 

the issues relating to the water reclamation plant construction is pertinent to our 

discussion. The specific plan was challenged in Kern County Superior Court. (United 

Water Conservation Dist. v. County of Los Angeles (Super. Ct., Kern County, 2000, 

No. 239324RDR).) On August 1, 2000, Judge Roger W. Randall issued a writ of 

mandate. The county was ordered to void its certification of the final environmental 

impact report with respect to five different issues. In addition, the county was ordered to 

vacate the project approvals. In this regard, the county was directed to ensure 

consistency of the specific plan with broader general plan policies as they relate to natural 

resources and water supplies. 

On May 27, 2003, the county approved the specific plan and an 85-page document 

entitled, “Additional [California Environmental Quality Act] Findings and Statement of 

Overriding Considerations Regarding The Newhall Ranch . . . .” The final additional 

findings and overriding considerations statement was necessitated by Judge Randall’s 

judgment. According to the May 27, 2003 findings: “As approved by the Board of 

Supervisors, the revised Specific Plan (May 2003) would include a broad range of 

residential, mixed-use and non-residential land uses within five villages. As revised by 

the Board of Supervisors, the Specific Plan allows for up to 21,308 dwelling units 

(including 423 second units), 629 acres of mixed-use development, 67 acres of 

commercial uses, 249 acres of business park land uses, 37 acres of visitor-serving uses, 

1,014 acres of open space, including 181 acres of community parks and 833 acres in 

other open spaces, 5,157 acres in special management areas, 55 acres in 10 neighborhood 
4

parks, 15-acre lake, public trail system, an 18-hole golf course, two fire stations, a public 

library, an electrical station, reservation of five elementary school sites, one junior high 

school site and one high school site, a 6.8 million gallon per day water reclamation plant 

and other associated community facilities. The build-out of the Specific Plan is projected 

to occur over approximately 25 to 30 years, depending upon economic and market 

conditions. Build-out of the Specific Plan would eventually result in an on-site resident 

population of 57,903 persons.” The specific plan contemplated the need for future 

federal, state and other governmental agency environmental review, permits, agreements 

and authorizations. 

After the May 27, 2003 approval of the specific plan as amended, the county filed 

a return in the Kern County litigation. Judge Randall approved the county’s May 27, 

2003 determination and discharged the August 1, 2000 writ of mandate. There was an 

appeal which resulted in a settlement. On April 1, 2004, the appeal was dismissed. 

Judge Randall had no further contact with any of the issues in this case. The remainder 

of our discussion focuses on decisions made by Los Angeles Superior Court Judge Ann I. 

Jones. For clarity’s sake, we refer to Judge Jones as the trial court. 

B. The Approval Of The Final Environmental Impact Report

1. The specific plan and adjoining areas

The documents at issue resulted in environmental decisions affecting the specific 

plan and adjoining areas. According to the environmental impact report, the following is 

the project area: “The [project] area is located in a portion of the Santa Clara River 

Valley within northwestern Los Angeles County, between the city of Santa Clarita to the 

east and the Los Angeles County/Ventura County jurisdictional boundary line to the 

west. The Los Padres National Forest is located to the north of the [project] area, the 

Angeles National Forest is to the north and east, and the Santa Susana Mountains are to 

the south.” One of the documents promulgated as part of the environmental review and 
5

approval process was the resource management plan. The boundary of the resource 

management plan includes the 11,999 acre specific plan site. Also, the resource 

management plan area includes the 1,517-acre Salt Creek conservation area in Ventura 

County. The Salt Creek conservation area adjoins the specific plan area and is southeast 

of the area to be developed. A component of the resource management plan is the 

conservation plan which we will discuss later in greater detail. The conservation plan’s 

boundary encompasses two other planning areas. They are the Entrada and Valencia 

Commerce Center Planning Areas which are located to the east and northeast of the 

development area respectively. Thus, the environmental planning and certification 

process extends beyond the development and specific plan areas. 

2. Environmental documents

a. agencies

The department’s approval of the project is predicated on a series of interrelated 

documents described in the first paragraph of this opinion: the environmental impact 

report; the resource management plan; the conservation plan; the streambed alteration 

agreement; and the two incidental take permits. The documents resulted from a joint 

action of the project by the department and the corps as permitted by the Guidelines for 

Implementation of the California Environmental Quality Act. (Cal. Code Regs., tit. 14, 

§ 150521.) The department is the lead agency under the California Environmental 

Quality Act. (Pub. Resources Code, § 210672; Guidelines, §§ 15050-15051.) The corps 

is the lead agency under the National Environmental Policy Act. (40 C.F.R. 

1

 Future references to the Guidelines are to Guidelines for Implementation of the 

California Environmental Quality Act. (Cal. Code of Regs., tit. 14, § 15000 et seq.)

2 Unless otherwise noted, future statutory references are to the Public Resources 

Code.
6

§ 1501.5(a)(2) (2013); see Save Our Ecosystems v. Clark (9th Cir. 1984) 747 F.2d 1240, 

1249.)

b. precertification and issuance events

As noted, the specific plan contemplated further environmental review. The initial 

process for preparation of the environmental impact report commenced on February 9, 

2000. But the scoping process was held in abeyance pending the outcome of the Kern 

County litigation concerning the specific plan. The scoping process for the 

environmental impact report began on February 9, 2000, and ended on August 24, 2005. 

On July 19, 2005, the corps issued a notice of intent to prepare a draft environmental 

impact report. (70 Fed.Reg. 41380 (Jul. 19, 2005).) On July 25, 2005, the department 

issued a notice of preparation of a draft environmental impact report. The project was 

described in the preparation notice as: the streambed alteration agreement; incidental 

take permits; and the conservation plan. The department’s July 25 draft environmental 

impact report preparation notice requested that any comments be sent no later than 

September 5, 2005. The final public scoping meeting was held on August 24, 2005. On 

April 27, 2009, the corps and the department released the draft environmental impact 

report. The 60-day public comment period concluded on June 26, 2009. The public 

comment period was then extended for another 60 days to August 25, 2009. On June 18, 

2010, the department and the corps released the final environmental impact report. As 

required by federal, but not state law, an additional 45-day comment period was provided 

by the corps. The additional federally mandated comment period ended on August 3, 

2010. The corps drafted responses to the comments. The department deferred 

certification until after the corps completed the additional comment period. On 

December 3, 2010, the department certified the environmental impact report. 
7

c. environmental impact report and adoption of findings

The department and the corps jointly prepared the 5,828-page project level 

environmental impact report. For purposes of the California Environmental Quality Act, 

the project is defined as follows: “[T]his document will also function as a project-level 

[environmental impact report] for the proposed [resource management plan] and 

[conservation plan] project components. The [environmental impact report] identifies 

and discloses the proposed [project’s] significant environmental impacts and identifies 

feasible mitigation measures and project alternatives. [The department] has determined 

that certification of the [environmental impact report] in compliance with [the California

Environmental Quality Act] is required before it may decide whether to issue the 

requested [streambed alteration agreement] and [incidental take permits] for the proposed 

[project] activities.” When finally certified, the project was defined as follows, “Newhall 

Ranch Resource Management and Development Plan (RMDP) and Spineflower 

Conservation Plan (SCP), and associated Master Streambed Alteration Agreement 

(No. 1600-2004-0016-RS) (MSAA) and Incidental Take Permits (ITPS) (Nos. 2081-

2008-012-05 and 2081-2008-013-05).” In other words, the environmental impact report 

relates to general planning and conservation steps resulting from the county’s specific 

plan. Depending on economic conditions and the like, it is anticipated that within the 

specific plan area there will be several residential and commercial developments. The 

environmental impact report does not authorize any specific future construction and the 

like apart from that discussed the resource management plan. Rather, the focus of the 

environmental impact report is on two steps in the pre-residential and commercial 

construction environmental planning--the resource management and conservation plans. 

Additionally, the environmental impact report was a necessary precondition to the 

issuance of the streambed alteration agreement and incidental take permits. And, as 

noted, the streambed alteration agreement and incidental take permits are part of the 

resource management plan. 
8

The environmental impact report consists of: an executive summary and 

introduction; a project description; an account and comparison of project alternatives and 

cumulative impacts including irreversible changes; consideration of growth inducing and 

federal impacts; a evaluation of global climate change impacts; an environmental impact 

analysis of alternatives and mitigation; an examination of surface water hydrology and 

flood control; a discussion of geomorphology and riparian resources; an evaluation of 

issues related to water quality; an analysis of jurisdictional waters and streams; a 

discussion of traffic and noise; an assessment of questions involving visual, cultural, 

paleontological, agricultural, water and biological resources; a description of land use, 

parks, recreation, trails, hazards, hazardous materials, solid waste services and public 

safety services related issues; and an evaluation of socioeconomics and environmental 

justice. Finally, the revised final version of the environmental impact report identifies the 

preparers and agencies consulted and references cited. 

The environmental impact report analyzes the developer’s proposed project and 

seven alternatives. Chapter 5 of the environmental impact report details the department’s 

consideration of seven different alternatives. Alternative No. 1 is the so-called noaction/no project option. Alternative No. 2 is the project as proposed in the draft 

environmental impact report. The final environmental impact report made changes to 

Alternative No. 2 from that discussed in the draft version. The project consists of this 

final version of Alternative No. 2. The changes reduced the significant environmental 

impacts of the project. 

d. resource management plan

In order to comply with the county’s specific plan, the resource management plan 

was developed. The resource management and development plan was prepared by 

Dudek, a Valencia, California environmental consulting firm. (Dudek is referred to in 

planning documents as “Dudek” and “Dudek and Associates.” We will refer to the 

consultant utilizing its title in the document we are discussing.) Dated December 3, 
9

2010, the 337-page resource management plan (some pages are blank) is described in the 

environmental impact report as a conservation, mitigation and permitting plan. The 

resource management plan will be used in the future to obtain federal and state permits. 

These permits will be used to implement infrastructure and other improvements required 

to facilitate future build-out of the county’s specific plan. 

e. conservation plan

The San Fernando Spineflower (Chorizanthe parryi ssp. Fernandina) 

(spineflower) is listed as an endangered species under the California Endangered Species 

Act (endangered species act). (Fish & G. Code, § 2050 et seq.) The 162-page December 

3, 2010 conservation plan permanently expands the existing spineflower preserve system. 

The spineflower is identified as a candidate species under the federal Endangered Species 

Act of 1973. (16 U.S.C. § 1531 et seq.; Pub. L. No. 93-205 (Dec. 28, 1973) 87 Stat. 

884.) The preserve system is designed to maximize long-term persistence of the 

spineflower.3 

f. permitting and other actions

Also on December 3, 2010, four other actions were taken. The first action 

consisted of a “dredge and fill permit.” In order for the department to implement the 

management and development plan, it was necessary to secure a dredge and fill permit 

from the corps. Such a permit was mandated by title 33 United States Code section 

1344(b), which is part of the Clean Water Act. (33 U.S.C. § 1251 et seq.) As part of the 

issuance of the dredge and fill permit, the corps and the department conducted joint 

environmental review. The second action consisted of the streambed alteration 

3

 For clarity’s sake we will refer to our state’s endangered species act as the 

“endangered species act.” We will refer to federal act as the “federal Endangered Species 

Act.”
10

agreement. The developer entered into the streambed alteration agreement with the 

department. (Fish & G. Code, §§ 1602-1603, 1605.) 

A third action consisted of the issuance of two incidental take permits. (Fish & G. 

Code, §§ 86, 2080, 2081, subd. (b).) One permit is for the spineflower. A separate 

multispecies incidental take permit was issued for the: western yellow-billed cuckoo 

(Coccyzus americanus occidentalis); southwestern willow flycatcher (Empidonax traillii 

extimus); and least Bell’s vireo (Vireo bellii pusillus). The developer’s request for an 

incidental take permit in connection with six species not listed in the endangered species 

act was denied. Fourth, a Mitigation and Monitoring and Reporting Program (mitigation 

program) was established for the streambed alteration agreement and the two incidental 

take permits. The mitigation program is to be used by the department to track 

compliance with the mitigation requirements. (§ 21081, subd. (a)(1); Guidelines, § 

15097.) 

g. findings

Also, on December 3, 2010, the department issued its 213-page California 

Environmental Quality Act factual findings and overriding considerations statement in 

connection with: the streambed alteration agreement; the incidental take permits; and the 

conservation plan. And the department issued its 43-page factual findings as required by 

title 14 California Code of Regulations section 783.5, subdivision (d)(2)(B)(5) for the 

incidental take permits for the: spineflower; Western yellow-billed cuckoo; 

Southwestern willow flycatcher; and Least Bell’s vireo. 

III. POST-CERTIFICATION EVENTS

On January 3, 2011, plaintiffs filed their Code of Civil Procedure sections 1085 

and 1094.5 mandate petition. The mandate petition challenges the: certification of the 

project’s environmental impact report; conservation plan; streambed alteration 
11

agreement; and issuance of two incidental take permits. The first cause of action 

challenges the department’s certification of the environmental impact report. The first 

cause of action also alleges the environmental impact report fails to comply with 

statutory and regulatory requirements in 10 respects: the description of the project and 

the affected environment; water quality; biological resources; greenhouse gas emissions; 

cultural resources; air quality; traffic; punitive impacts; alternatives; and inadequate 

response to public comments. 

The second cause of action alleges a failure to recirculate the draft environmental 

report requires the certification be set aside. After the draft environmental impact report 

was prepared, comments were submitted to the department which provided significant 

new information within the meaning of section 21092.1 and Guidelines section 15088.5. 

The comments described project impacts relating to biological and cultural resources and 

greenhouse gas emissions. Despite the development of significant new information on 

the severity of the project impacts, the department failed to recirculate any portion of the 

draft environmental impact report. As a result, the petition alleges the failure to 

recirculate the draft environmental impact report is not supported by substantial evidence

and its approval must be set aside. 

The third cause of action challenges the spineflower and multi-species incidental 

take permits. According to plaintiffs, the department’s determinations concerning the 

spineflower and multi-species incidental take permits are not based upon the best 

reasonably available scientific and other information. The mandate petition alleges the 

issuance of the incidental take permits was an abrogation of the department’s affirmative 

duty to protect public trust resources. 

The fourth cause of action, filed pursuant to Code of Civil Procedure section 1085, 

alleges the department’s findings are not supported by substantial evidence. The 

defective findings are required by applicable environmental laws including the 

endangered species and California Environmental Quality Acts. According to the 

mandate petition, substantial evidence did not support the department’s findings in 

connection with: significant environmental impacts; the overriding considerations
12

statement; feasible alternatives or mitigation measures; whether environmentally superior 

alternatives were infeasible due to costs; the damage done to the spineflower species; the 

continued existence and take of other species including the Southwestern willow 

flycatcher, and the Least Bell’s Vireo and Yellow-billed Cuckoo; and the incidental take 

permits. 

The fifth cause of action challenges the issuance of the streambed alteration 

agreement. No issue has been raised on appeal concerning the propriety of the streambed 

alteration agreement. The sixth cause of action alleges a violation of Fish and Game 

Code section 5515. Fish and Game Code section 5515 provides, except in limited 

exceptions, that “fully protected fish or parts thereof” may not be taken or possessed 

under any circumstances. The department’s project authorization will result in the 

prohibited take of the Unarmored Threespine Stickleback (stickleback). This would 

result from: the direct destruction of its habitat; localized alterations in streamflow; other 

hydrological and fluvial geomorphological changes; and facilitation of hybridization of 

other stickleback species that could result in the extinction of the native population. 

On September 20, 2012, the hearing was held on plaintiff’s mandate petition. At 

the conclusion of the hearing, the trial court issued its tentative statement of decision. 

We need not detail the contents of the tentative statement of decision. The trial court’s 

final statement of decision materially modified the September 20, 2012 document. On 

October 11, 2012, the department and the developer filed objections to the tentative 

statement of decision. 

On October 15, 2012, the trial court’s final statement of decision was filed. In its 

final statement of decision, the trial court ruled that the department abused its discretion 

in six aspects: First, the trial court ruled that environmental impact report failed to 

adequately discuss the impact of dissolved copper discharged from the project area on 

steelhead smolt. The trial court ruled, “The [environmental impact report] fails to 

consider . . . whether the dissolved copper discharged from the [p]roject [a]rea . . . would 

adversely affect restored habitat for endangered steelhead smolt.” Second, the trial court 

ruled the department’s analysis of the spineflower mitigation measures was legally 
13

impermissible. And, in a related vein, the trial court ruled there was no substantial 

evidence the mitigation matters were adequate. Third, the trial court ruled the 

environmental impact report’s selection of a baseline for assessing the cumulative 

impacts of the project’s greenhouse gas emissions was, as a matter of law, inappropriate. 

In addition, the trial court ruled that certain aspects of the department’s baseline analysis 

in the environmental impact report were not supported by substantial evidence. Fourth, 

the trial court ruled that the environmental impact report’s assessment of the project’s 

impact on Native-American cultural resources was not supported by substantial evidence. 

Fifth, the trial court ruled the department failed to prevent the taking of the stickleback, a 

fully protected fish under Fish and Game Code section 5515, subdivision (a)(1). Sixth, 

the trial court ruled the department unduly relied upon the specific plan and failed to 

conduct an independent review of project impacts. The trial court rejected all of 

plaintiffs’ other numerous contentions.

On October 15, 2012, judgment was entered in plaintiffs’ favor. The judgment 

ordered the department to set aside the approvals of the: resource management plan; 

conservation plan; incidental take permits; and streambed alteration agreement. Further, 

the department was ordered to set aside its certification of the final environment impact 

report. Finally, the department was ordered to set aside its findings, overriding interests 

statement and mitigation program. As noted, the findings, overriding interests statement 

and mitigation program related to the: resource management plan; spineflower 

conservation plan; incidental take permits; and streambed alteration agreement. Further, 

pursuant to section 21168.9, subdivision (a)(2), the department and the developer are 

enjoined from implementing any of the activities specified in the: resource development 

and spineflower conservation plans; incidental take permits; and streambed alteration 

agreement. The injunction expires once the department certifies an environmental impact 

report that complies with the deficiencies indentified in the statement of decision. The 

peremptory writ of mandate, filed on October 15, 2012, paralleled the requirements 

imposed by the judgment. 
14

On November 13, 2012, the developer filed its notice of appeal. On November 20, 

2012, the department filed its notice of appeal. On November 21, 2012, the department 

filed an amended notice of appeal. All appeals have been considered together.

IV. DISCUSSION

A. Standards Of Review For Environmental Impact Report Issues

An environmental impact report’s fundamental purpose is to inform public 

officials and the people they serve of any significant adverse effects a project is likely to 

have on the environment. (§ 21061; Neighbors for Smart Rail v. Exposition Metro Line 

Const. Authority (2013) 57 Cal.4th 439, 447; Vineyard Area Citizens for Responsible 

Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) Reviewing courts 

presume the correctness of an agency’s decisions in the environmental impact report 

context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 

11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) Our 

Supreme Court has described the limited nature of judicial review: “In reviewing agency 

actions under [the California Environmental Quality Act], . . . section 21168.5 provides 

that a court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of 

discretion. Abuse of discretion is established if the agency has not proceeded in a manner 

required by law or if the determination or decision is not supported by substantial 

evidence.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 

564; see Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 

Cal.App.4th 184, 195.) 

Thus, our standard of review depends upon the nature of the challenge to an 

environmental impact report. Our Supreme Court explained this dichotomy: “In 

evaluating an [environmental impact report] for [California Environmental Quality Act] 

compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged 

defect, depending on whether the claim is predominantly one of improper procedure or a 
15

dispute over the facts. For example, where an agency failed to require an applicant to

provide certain information mandated by [the California Environmental Quality Act] and 

to include that information in its environmental analysis, we held the agency ‘failed to 

proceed in the manner prescribed by [the California Environmental Quality Act].’ 

(Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; see also Santiago 

County Water Dist. v. County of Orange [(1981)] 118 Cal.App.3d [818], 829 

[[environmental impact report] legally inadequate because of lack of water supply and 

facilities analysis].) In contrast, in a factual dispute over ‘whether adverse effects have 

been mitigated or could be better mitigated’ (Laurel Heights[ Improvement Assn. v. 

Regents of University of California (1988)] 47 Cal.3d [376,] 393), the agency’s 

conclusion would be reviewed only for substantial evidence.” (Vineyard Area Citizens 

for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) 

In terms of the correctness of the department’s environmental conclusions, our 

Supreme Court has explained: “Thus, the reviewing court ‘“does not pass upon the 

correctness of the [environmental impact report’s] environmental conclusions, but only 

upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an 

agency’s approval of an [environmental impact report] on the ground that an opposite 

conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v. 

Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement 

Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of 

Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) Thus, we defer to an 

agency’s resolution of conflicting opinions and evidence. (Western States Petroleum 

Assn. v. Superior Court (1995) 9 Cal.4th 559, 572; accord Environmental Council of 

Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.) Virtually every 

contention (with exceptions we shall discuss) posited by plaintiffs contravene the 

foregoing standard of review for an environmental conclusion. With little exception, 

plaintiffs’ analysis requires reweighing of conflicting opinions and evidence. 

Our standard of review is the same as that of the trial court. We do not review the 

trial court’s decision; rather, we examine the department’s adherence to the law and 
16

environmental conclusions as specified above. (Vineyard Area Citizens for Responsible 

Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427; Melom v. City 

of Madera (2010) 183 Cal.App.4th 41, 47-48.) We will refer to the trial court’s analysis 

because it serves as the basis for much of the parties’ analysis. However, with one 

exception (the admissibility of a post-environmental impact statement certification 

document), we are not reviewing the trial court’s decision but the agency’s 

determinations. 

B. Stickleback Take Issues And The Endangered Species Act 

1. Stickleback

The stickleback’s presence in the resource management plan’s area was described 

in a report prepared by Entrix, Inc., one of the developer’s environmental consultants. 

The Entrix, Inc. “Special Status Aquatic Species Habitat Assessment for the Santa Clara 

River” describes the stickleback presence in the resource management plan area in part 

thusly: “Populations of [stickleback] are restricted to three sections of the upper Santa 

Clara River including the Newhall Ranch reach, which represents the downstream 

demarcation of the [stickleback] species. . . . The [stickleback] is a small, largely annual 

fish that requires shallow, slow, marginal stream flows with abundant aquatic vegetation 

for cover. The male guards territories and builds a small nest of decaying vegetation 

where he guards the eggs until they hatch. Large numbers of stickleback can exist in the 

summer and fall with the long breeding season in southern California, and breeding can 

be almost all year in dry years when a stream is minimally disrupted by storm flows. 

Under optimum conditions, up to a few hundred stickleback can exist within 

approximately [10] meters of stream. Strong storm flows can severely reduced localized 

populations until the streams stabilize in spring and the numbers can build up again. 

Backwater habitats within the Santa Clara River are utilized by [stickleback] as refugia 

during storm events.” According to an Entrix, Inc. study, in the resource management 
17

plan area, the stickleback is abundant. The stickleback’s population is dependent on 

interannual hydrological conditions which includes the frequency and intensity of flood 

events. 

Dr. Camm Swift, a biologist whose qualifications we will relate shortly, reported 

that in occasional dry years when no peak storms occur, reproduction occurs virtually 

year-round. But generally, the greatest numbers of stickleback are present from around 

mid-summer to late fall. This occurs because reproduction has increased the number of 

juvenile as well as adult stickleback. These large numbers are usually decimated by peak 

storm flows generally beginning in late November. In other words, in normal or heavy 

rainfall years, the stickleback population is typically at its nadir in late fall and winter. 

A United States Forest and Wildlife Service (federal wildlife service) summary 

describes the stickleback as a small scale freshwater fish inhabiting slow-moving reaches 

or quiet-water micro-habitats of streams and rivers. The stickleback primarily feed on 

insects, small crustaceans and snails. To a lesser degree, the stickleback feed on 

nematodes, flatworms and terrestrial insects. 

2. Development related activities

The resource management plan contemplates bridge, road and other construction 

as a precursor to future development: “The [resource management plan] consists of 

development-related infrastructure improvements in or adjacent to the Santa Clara River 

and tributaries located in the [resource management plan] area to implement the Countyapproved Specific Plan. The [resource management plan] infrastructure components are 

comprised of bridges/road crossing culverts, bank stabilization, drainage facilities, water 

quality control facilities, tributary drainage modification and conversion, utility corridor 

and crossings, temporary haul routes for grading equipment, the discharge outfall of the 

previously-approved Newhall Ranch Water Reclamation Plant, roadway improvements to 

[State Route]-126, and recreation facilities.” The resource management plan 

contemplates that two bridges will be constructed. 
18

3. Mandatory mitigation requirements designed to insure no stickleback take occurs

We turn now to the mitigation measures imposed on the developer. The 

mitigation measures are attached to the department’s factual findings of fact and are 

discussed in the environmental impact report. The mitigation measures relate to the 

biological resources discussion in the environmental impact report. Therefore, the 

mitigation measures are identified by the letters “BIO” followed by a number. We 

describe them in great detail.

BIO-43 sets forth requirements for preconstruction surveys by qualified biologists: 

“Prior to initiating construction for the installation of bridges, storm drain outlets, utility 

lines, bank protection, trails, and/or other construction activities that result in any 

disturbance to the banks or wetted channel, aquatic habitats within construction sites and 

access roads, as well as all aquatic habitats within 300 feet of construction sites and 

access roads, shall be surveyed by a qualified biologist for the presence 

of . . . stickleback. . . . The [c]orps and [the department] shall be notified at least 14 days 

prior to the survey and shall have the option of attending. The biologist shall file a 

written report of the survey with both agencies within 14 days of the survey and no later 

than 10 days prior to any construction work in the riverbed. If there is evidence that fish 

spawn has occurred in the survey area, then surveys shall cease unless otherwise 

authorized by [the federal wildlife service]. If surveys determine that gravid fish are 

present, that spawning has recently occurred, or that juvenile fish are present in the 

proposed construction areas, all activities within aquatic habitat will be suspended. 

Construction within aquatic habitats shall only occur when it is determined that juvenile

fish are not present within the [project] area.” In addition, BIO-43 imposes mitigation 

measure monitoring requirements. The fish surveys must be completed prior to 

construction and documented in a written report. The department must be notified at 

least 14 days prior to the survey. The survey report is to be filed with the department 

within 14 days of the survey. At the latest, the biologist’s report must be delivered to the 

department no sooner than 10 days prior to construction. 
19

BIO-44 requires the developer to prepare a “Stream Crossing and Diversion Plan” 

to protect stickleback during construction. BIO-44 imposes the following requirements: 

“Temporary bridges, culvert crossings, or other feasible methods of providing access 

across the river shall be constructed outside of the winter season and not during periods 

when spawning is occurring. Prior to the construction of any temporary or permanent 

crossing of the Santa Clara River, the applicant shall develop a Stream Crossing and 

Diversion Plan. The plan shall include the following elements: the timing and methods 

for pre-construction aquatic species surveys; a detailed description of the diversion 

methods (e.g., berms shall be constructed of on-site alluvium materials of low silt 

content, inflatable dams, sand bags, or other approved materials); special-status species 

relocation; fish exclusion techniques, including the use of block netting and fish 

relocation; methods to maintain fish passage during construction; channel habitat 

enhancement, including the placement of vegetation, rocks, and boulders to produce riffle 

habitat; fish stranding surveys; and techniques for the removal of crossings prior to 

winter storm flows. The Plan shall be submitted to the [federal wildlife service] and [the 

department] for approval at least 30 days prior to implementation.” 

BIO-44 further requires that if stickleback are present and spawning has not 

occurred, they are to be relocated prior to streambed diversion or any crossing of the 

stream. To prevent stickleback from entering construction areas, block nets of 1/8 inch 

“woven mesh” are to be set up both up and down stream. In terms of high temperature or 

low humidity conditions, BIO-44 imposes additional requirements. “On days with 

possible high temperature or low humidity (temperatures in excess of 80 [degrees] F), 

work will be done in the early morning hours, as soon as sufficient light is available, to 

avoid exposing fishes to high temperatures and/or low humidity. If high temperatures are 

present, the fishes will be herded to downstream areas past the block net. Once the fishes 

have been excluded by herding, a [federal wildlife service] staff member or his or her 

agents shall inspect the site for remaining or stranded fish. A [federal wildlife service] 

staff member or his or her agents shall relocate the fish to suitable habitat outside the 

[project] area (including those areas potentially subject to high turbidity). During the 
20

diversion/relocation of fishes, the [federal wildlife service] or his or her agents shall be 

present at all times.” 

BIO-44, as in the case of other mitigation measures, is subject to specified 

monitoring requirements. The Stream Crossing and Diversion Plan must be prepared and 

submitted to the federal wildlife service and the department. Any follow-up procedures 

are to be conducted prior to the commencement of construction. The crossing and 

diversion plan must be submitted to the department at least 30 days prior to 

implementation.

BIO-45, the lengthiest and most comprehensive of the mitigation measures, 

identifies standards for stream diversion bypass channels. The diversion bypass channels 

are to be constructed in compliance with BIO-44. BIO-45 states: “The diversion channel 

shall be of a width and depth comparable to the natural river channel. . . . [T]he bypass 

channel will be constructed prior to diverting the stream, beginning in the downstream 

area and continuing in the upstream direction. Where feasible and in consultation with 

[the department/federal wildlife service], the configuration of the diversion channel will 

be curved (sinuous) with multiple sets of obstructions (i.e., boulders, large logs, or other 

[department/federal wildlife service]-approved materials) placed in the channel at the 

point of each curve (i.e., on alternating sides of the channel.) If emergent aquatic 

vegetation is present in the original channel, the applicant will transplant suitable 

vegetation into the diversion channel and on the banks prior to or at the time of the water 

diversion. A qualified restoration ecologist will supervise the construction of the 

diversion channels on site. The integrity of the channel and diversion shall be maintained 

throughout the intended diversion period. Channel bank or barrier construction shall be 

adequate to prevent seepage into or from the work area.” No construction of diversion 

channels is to commence if surveys indicate that: gravid fish are present; spawning has 

recently occurred; or juvenile fish are present in the construction areas. 

Once the need for diversion has concluded, either at the commencement of winter 

or completion of construction, BIO-45 imposes additional requirements on the developer. 

Under those circumstances, the developer is required to coordinate with the department
21

and the federal wildlife service to determine if the diversion should be left in place. In 

the alternative, the developer, the department and the federal wildlife service may 

conclude that the original stream course should be reinstated. If the original stream 

course is to be reinstated, BIO-45 requires the following: “If [the department/federal 

wildlife service] determine the stream should be diverted to the original channel, the 

original channel will be modified prior to re-diversion (i.e., while dry) to construct curves 

(sinuosity) into that channel, including the placement of obstructions (i.e., boulders, large 

logs, or other [department/federal wildlife service]-approved materials). The original 

channel will be replanted with emergent vegetation as the diversion channel was 

planted.” 

BIO-45 also imposes dewatering requirements. Many of the dewatering 

requirements do not relate to the stickleback or other fish. However, in terms of fish, 

which includes the stickleback, BIO-45 states: “Fish shall be excluded from any artificial 

flowing channels from dewatering discharge. Methods to ensure separation may include, 

but are not limited to: block netting at the confluence; creation of a physical drop greater 

than four inches at the confluence; or maintaining a velocity range unsuitable for fish 

passage, such as a berm at the confluence with small diameter pipes for discharge.” 

All dewatering and diversion activities are to fully comply with BIO-45

throughout the entire construction period. All diversion channels are to be approved by 

the department and the federal wildlife service prior to construction. In addition, all 

proposed channels that are to be in existence at the conclusion of construction activities 

are subject to approval by the department and the federal wildlife service. BIO-45 

contains monitoring requirements. Field monitoring is to be conducted daily by a 

qualified restoration ecologist. And the developer is required to submit reports annually 

by April 1 to the department until all success criteria have been met. 

BIO-46 imposes requirements for a biologist to be present during any stream 

diversion or culvert installation activity. BIO-46 states: “During any stream diversion or 

culvert installation activity, a qualified biologist(s) shall be present and shall patrol the 

areas within, upstream and downstream of the work area. The biologists shall inspect the 
22

diversion and inspect for stranded fish or other aquatic organisms. Under no 

circumstances shall the . . . stickleback be collected or relocated, unless [federal wildlife 

service] personnel or their agents implement this measure. Any event involving stranded 

fish shall be recorded and reported to [the department] and [the federal wildlife service] 

within 24 hours.” BIO-46 contains its own mitigation measure monitoring requirements. 

There are to be follow-up procedures conducted during the construction period. The 

department is to receive reports from the developer annually by April 1. 

BIO-47 imposes requirements on the developer in connection with stream 

alterations: “Slow moving water habitats shall be constructed upstream and downstream 

of any river crossing or bridge construction area to provide refuge for special-status 

fishes during construction. Where feasible and in consultation with [the department] and 

[the federal wildlife service], the applicant shall enhance slow moving water habitats for 

each linear foot disturbed by hand-excavating shallow side channels and placing multiple 

sets of obstructions (e.g., boulders, large logs, or other [department] and [federal wildlife 

service]-approved materials) in the channel.” The mitigation measure monitoring 

requirements for BIO-47 are: required habitat areas are to be in place prior to the 

commencement of stream crossings or bridge construction; field inspections are to occur 

prior to beginning construction operations; the department must approve all 

preconstruction materials; the developer must consult with the department and the federal 

wildlife service when enhancing slow-moving water habitats; and the developer must 

submit reports to the department annually by April 1 until success criteria are met. 

Finally, BIO-48 states: “Installation of bridges, culverts, or other structures shall 

not impair the movement of fish and aquatic life. Bottoms of temporary culverts shall be 

placed at or below channel grade. Bottoms of permanent culverts shall be placed below 

channel grade. Culvert crossing shall include provisions for a low flow channel where 

velocities are less than two feet per second to allow fish passage.” The BIO-48 

mitigation measure monitoring requirements are: the “[g]rading/construction plans” are 

to implement the specified drainage design measures; drainage plans are to be reviewed 

prior to the start of construction; the drainage plans are to be provided in conjunction 
23

with the construction notification to the department and the corps; and reports are to be 

provided to the department annually by April 1. 

4. Findings concerning the stickleback and the endangered species act

a. environmental impact report findings

The environmental impact report makes various findings concerning the effect of 

the construction related activities. As a general matter, the environmental impact report 

specifies that there would be direct and indirect impacts on special status species such as 

the stickleback. The environmental impact report specifies that there will be temporary 

impacts resulting from implementation of the resource management plan. The 

environmental impact report states: “Although no substantial permanent impacts 

to . . . stickleback habitat would occur through implementation of the [resource 

management plan], the [project] would temporarily affect habitat when construction 

occurs directly in aquatic habitat, such as the active stream channel. Bridge construction, 

in particular, could directly affect aquatic habitat occupied by . . . stickleback through 

direct impacts to the flowing stream, stream diversion, and dewatering when construction 

is occurring within the [Santa Clara] River corridor. Direct impacts from temporary 

construction would be significant absent mitigation primarily due to permanent and 

temporary disturbance to aquatic habitat from construction of [resource management 

plan] facilities within the Santa Clara River.” At another point in the environmental 

impact report, the department relates the following anticipated activities will cause direct 

but temporary impacts on the stickleback during construction: stream diversion; species

exclusion; unauthorized entry of equipment into ponded or flowing waters; placement of 

fill in occupied waters; dewatering activities; discharge of pollutants; and unauthorized 

entry of personnel into occupied waters. These activities, according to the environmental 

impact report, can result in the following impacts: inadvertently directing fish to 

unsuitable habitats; blocking fish passage; stranding stickleback in unsuitable water 
24

quality conditions; crushing or entombment of stickleback; unauthorized collection of 

stickleback; or physical disturbance of river edge habitats. In terms of short term 

construction related impacts, the environmental impact report identifies hydrologic and 

water quality effects. According to the environmental impact report, absent mitigation, 

these construction related direct and temporary impacts to individual stickleback would 

be significant. 

The environmental impact report identifies other impacts on the stickleback as 

significant absent mitigation: alterations in base flows; timing and duration of flood 

flows; biochemical changes; condition and composition of the substrate; aquatic and 

riparian vegetation (including exotic species); water temperatures; increased pollutants 

from irrigation runoff; increased runoff from roadways; the effects of increased human 

presence; and increased predation by exotic predators, such as bullfrogs and non-native 

fish. Finally, the environmental impact report considers the potentiality of downstream 

stickleback outside the project area moving upstream. The department’s concern is that 

this could lead to genetic introgression. However, given the unlikely prospect of such 

occurring, the department categorizes this risk as less than significant. In terms of 

permanent post-construction impacts on the stickleback, the developer’s consultant, 

Entrix, Inc., concluded there would be less than significant or no impacts as result of the 

bridge construction. 

We turn now to the construction issue raised in a comment and the department’s 

and the corps’ responses thereto. The comment and the department’s and the corps’ 

responses directly relate to the issue of whether a take of the stickleback is expected to 

occur. During the comment period, the department and the corps received an August 8, 

2010 letter from Dr. Jonathan N. Baskin. Dr. Baskin is a Professor Emeritus of 

Biological Sciences at California State Polytechnic University, Pomona. Much of Dr. 

Baskin’s letter comments on inadequacy of the discussion concerning impacts from the 

bridge construction portions of the project. In the middle of his letter Dr. Baskin’s notes: 

“Also, it is clear that there will be a large amount of construction in the river channel, 
25

which will require impacts to the flowing water that could contain the [stickleback].

How will this be implemented without ‘take’ of the [stickleback]?” 

The staff of the department and the corps clearly understood Dr. Baskin was 

raising the issue of whether a take within the meaning of Fish and Game Code section 86 

will occur. The responses of the department and the corps to the comments directly 

address Dr. Baskin’s concerns. The department and the corps note the potential adverse 

impacts on the stickleback. The department and the corps jointly conclude the 

implementation of the mitigation measures discussed above will “avoid take” of the 

stickleback. Later in their responses to Dr. Baskin’s letter, the department and the corps 

explain: “Note that these mitigation measures were designed with input and direction 

from [Dr. Swift]. Based on the [environmental impact statement/environmental impact 

report] analysis presented, with implementation of the applicable mitigation measures, 

there is a high degree of confidence that the proposed [project] and alternatives would not 

cause a take of [the stickleback].” We will discuss Dr. Swift’s analysis in greater detail 

shortly.

b. incidental take permit findings

As noted, the department issued two incidental take permits. The department 

made factual findings under the endangered species act in connection with the 

spineflower and multispecies incidental take permits. Those factual findings also refer to 

other endangered species including the stickleback. The department expressly bars any 

taking of any other endangered species in the findings as well as the streambed alteration 

agreement. In the incidental take findings, the department found: “The Spineflower 

[incidental take permit] and Multi-species [incidental take permit] do not authorize the 

take of any fully protected species. (See Fish & G. Code §§ 3511, 4700, 5050, 5515.) 

[The department] has advised [the developer] of the requirement to avoid take of fully 

protected species and believes that [the developer] can carry out Covered Activities 

pursuant to the Spineflower [incidental take permit] and Multi-species [incidental take 
26

permit] in a manner consistent with the Fish and Game Code provisions governing fully 

protected species. [The department’s] determination regarding consistency with Fish and

Game Code provisions governing fully protected species is based on [the department’s]

preparation and certification of the [final environmental impact statement/environmental 

impact report], which considered the environmental effects related to the issuance of the 

Spineflower [incidental take permit] and Multi-species [incidental take permit] and 

recommended avoidance, minimization and mitigation measures related to fully protected 

species documented to occur within the vicinity of the [project] area or that have some 

potential to occur due to the presence of suitable habitat. These fully protected species 

include . . . the [stickleback].” 

In the next paragraph of its factual findings, the department explains the federal 

wildlife service may be issuing an opinion which may authorize a take of the stickleback. 

In that regard, the department notes that the federal wildlife service may conclude there is 

possibility of a take of the stickleback under the federal Endangered Species Act. 

Nonetheless, the department concluded the project could be completed in a manner 

consistent with the Fish and Game Code provisions governing the take of fully protected 

species such as the stickleback.4

4

 The full finding is as follows: “There are a few species that are fully protected 

under the Fish and Game Code and that are also listed species under the Federal 

[Endangered Species Act]. For federally-listed species on the [project] site, the [c]orps 

and [the developer] have requested a biological opinion from the [federal wildlife 

service], which, when issued, may or may not include take authorization for federally

listed species, including [stickleback] and California condor. It is possible the [federal 

wildlife service] may conclude in an abundance of caution that there is some potential for 

federally-defined ‘take’ of these species. (See 50 C.F.R. § 17.3 (‘harm’ component of 

take definition can include habitat modification under certain circumstances).) However, 

whether or not the [federal wildlife service] takes such a conservative approach consistent 

with the federal definition of ‘take,’ based on the analysis set forth in the [environmental 

impact statement/environmental impact report], and as discussed above, [the department]

finds that the [project] can be carried out in a manner consistent with the Fish and Game 

Code provisions governing fully protected species.” 
27

5. Evidence re: take

The department’s conclusion that no take of the stickleback would occur was 

based upon multiple scientific studies. The department relied upon 10 different reports 

which extensively discuss: the status of the stickleback between 1989 and 2010; the 

location of the stickleback in relation to portions of the Santa Clara River; the habitat of 

the stickleback in the Santa Clara River area; and the characteristics of Santa Clara River 

flows including after recent and future projected flooding. The studies indicate there are 

times and places in the project area where stickleback are absent or rarely observed in the 

Santa Clara River in the resource management plan area. After the 2005 flooding, the 

stickleback were not observed in the Santa Clara River at all in the resource management 

plan area. Two separate studies indicate that the resource management plan activities 

will not alter the general morphology of the Santa Clara River or the adjacent rearing and 

flood refuge areas. According to a multi-year survey by Entrix, Inc. scientists, the 

proposed project will result in changes in refuge for the stickleback: “Implementation of 

[the proposed project] is expected to result in a gain in natural refugia acreage under two, 

five, ten, and [one-hundred-year] flood conditions. A loss of 6.9 and 0.4 acres is 

expected under twenty and [fifty-year] flood conditions, respectively. Disturbed refugia 

acreage is expected to increase during a five, ten or [one-hundred-year] flood event. 

Two, twenty, and [fifty-year] flood events are predicted to result in a loss of small 

amounts of disturbed refugia acreage under the proposed alternative.” The Entrix, Inc. 

study concluded: no impacts to fish species, which includes the stickleback, would occur 

in the Santa Clara River tributaries; there will be no alteration in the general morphology 

of the Santa Clara River or adjacent habitat; under flood conditions there will be no 

discernible difference in the marginal stickleback habitat under the various alternatives; 

and the resource management plan would not interfere with the persistence and overall 

survival of the stickleback. 

Dr. Swift, one of the leading authorities in the field of stickleback protection, 

prepared a technical discussion of issues, including relocation of the stickleback. Dr. 
28

Swift prepared the analysis for Entrix, Inc. Dr. Swift possesses department and federal 

wildlife service collecting permits for the stickleback. Dr. Swift co-authored the federal 

wildlife service recovery plan for the stickleback. He did so as a member of the federal 

stickleback recovery team between 1972 and 1995. He conducted habitat surveys in the 

upper Santa Clara River and nearby lower Santa Paula creek. In connection with a 

project in the City of Valencia, Dr. Swift participated in the relocation of stickleback. In 

addition, Dr. Swift surveyed and participated in trapping of stickleback at Vandenberg 

Air Force Base. Dr. Swift has participated both in federal and state assessment and 

survey programs and helped draft restoration and mitigation plans for freshwater fish. 

Dr. Swift described methods for monitoring and moving the stickleback: 

“Stickleback are often monitored and/or moved from the areas of stream subject to a 

variety of construction activities. These methods have been utilized numerous (probably 

hundreds) of times for . . . stickleback in the Santa Clara River and tributaries, San 

Antonio Creek, Santa Barbara County, and in Shay Creek, San Bernardino County. 

These various projects have been approved numerous times by the [department] and the 

[federal wildlife service]. This typically involves utilizing biologists that have proper 

collecting permits from both the [federal wildlife service] and [the department] (State 

Scientific Collecting Permit with a Memorandum of Understanding covering collecting, 

handling, holding, and transferring live specimens of the fully protected . . . 

stickleback).” Typically, these projects utilize biologists who were trained in collecting, 

handling and transferring live stickleback. 

Dr. Swift described the methodology for use of nets and relocation of stickleback 

away from construction areas. We only briefly discuss Dr. Swift’s extensive analysis. 

The key elements of stickleback protection in construction areas are as follows. To begin 

with, the river construction area is isolated with block nets of specified dimensions. Dr. 

Swift characterizes the zones above and below the construction zone as buffer areas. The 

buffer areas are 50 to 100 meters above and below the construction area. Once the 

blocking nets are secured, fish are removed from the construction area. This is 

accomplished by using seine netting to herd the fish until they can be placed in containers 
29

for movement beyond the buffer areas. An option is to move the fish a greater distance 

than just beyond the buffer nets. Dr. Swift indicated that the stickleback should be kept 

in containers temporarily. 

Safe movement of stickleback can best be accomplished after the first peak storm 

has passed. This is because the stickleback population will be at its lowest level. This 

will reduce the necessity of handling larger numbers of stickleback. Dr. Swift specified 

the temperatures when stickleback should not be moved and stated these activities should 

be scheduled early in the morning when the water is cool. 

Another option is to reroute an existing river channel. In this scenario, two 

rescues occur. First, the fish in the current channel are captured with the seine netting. 

Second, the channel gradually becomes dry and the remaining fish are exposed and 

picked up by the biologists. Another technique in an area consisting of a relatively wide, 

flat floodplain would be simply to dig the new channel. Then the current channel would 

be blocked and the fish in it rescued. 

If the riverbed is rerouted, Dr. Swift identified requirements specific to the 

stickleback. Dr. Swift specified: the passage area in the rerouted streambed should be 

greater or equal in width to maintain normal stream processes; a natural watercourse 

bottom and hydraulic condition is preferable; a minimum water depth of eight inches (six 

inches is probably adequate for the stickleback); appropriate water velocities and 

methods of increasing the speed of water in the rerouted stream; no waterfalls or baffles 

should be present in stickleback passages; and the water surface in the rerouted stream 

must blend smoothly with the up and downstream edges of the passage area. 

Another option is simply to install a bridge-like platform across the river channel 

to be used as a structure from where work is performed. Under these circumstances, the 

river would never be entered by biologists or construction employees. This will result in 

shading of the river channel as will eventually occur once bridge construction has been 

completed. Construction crews in this scenario would have to take precautions to prevent 

leakage of fluids from the project into the river. 
30

Yet another option is to avoid any encroachment on the river channel. Dr. Swift 

explained: “[S]ome projects never encroach entirely on the wetted channel thus 

maintaining habitat and passage between the up and downstream parts of the floodplain. 

With this method a berm or access route would follow the construction footprint out on to 

the floodplain. The bridge would be built outward from scaffolding or other temporary

support on each side of the wetted channel. Each of the outward extensions would join 

over the stream such that work could all be done from over the river without going into it. 

Such a method should allow year round work and should get very favorable response 

from the regulatory agencies. This method was utilized when the additional bridge was 

built by Cal Trans over Malibu Lagoon. A berm encroached out a short distance into the 

lagoon from one side and all work was done outward from it. Later this berm was 

removed and another was built extending from the opposite side. Thus the Malibu 

Lagoon was never entirely blocked and stream and tidal flow was always possible during 

the project.” In Dr. Swift’s view, any such design that maintains the natural river channel 

in the low flow season and allows for the passage of fish is a more desirable construction 

option. 

6. Trial court’s ruling

The trial court ruled the department failed to prevent the taking of the stickleback, 

a fully protected fish under Fish and Game Code section 5515, subdivision (a)(1). Before 

setting forth the trial court’s ruling, it is necessary to provide some background 

concerning incidental take permits. The endangered species act was originally adopted in 

1982. (Stats. 1984, ch. 1240, § 2, pp. 4243-4249.) When originally adopted, the 

endangered species act did not permit the department to authorize a take of a protected 

animal. Fish and Game Code section 2081 was adopted in 1997. (Stats.1997, ch. 567, § 

2, pp. 3440-3441.) Fish and Game Code section 2081, subdivision (b) permits the 

department to issue incidental take permits under specified circumstances. Such permits 

may be issued if the take is incidental to otherwise lawful activity. As will be noted, the 
31

trial court ruled that an environmental impact report could not be certified without the 

issuance of an incidental take permit. 

The trial court ruled that the department agreed the resource management area 

construction, if unmitigated, would have a significant effect on the stickleback. The trial 

court ruled: “In response, therefore, the [environmental impact report] recommended a 

number of mitigation measures, including surveys to identify the presence of 

[stickleback] and other protected fish, suspending construction [if] spawn or juvenile fish 

are present, and providing alternative diversion flows and methods to maintain fish 

passage for aquatic species and other methods. However, the very ‘mitigation’ methods 

recommended to be conducted with supervision by a [federal fish and wildlife service] 

biologist, such as block netting and fish relocation, falls within the meaning of [an] illegal 

‘taking’ under the . . . Fish and Game Code. Accordingly, while the proposed mitigation 

strategies designed by [Dr. Swift] may not occasion a take under federal law, it would 

cause a taking of the [stickleback] under California law. [¶] Thus, where there is a 

mitigation proposal that by its very terms constitutes an illegal taking of the [stickleback] 

under state law, the strategy fails to be a reasonable and realistic alternative. Without the 

issuance of an [incidental take permit], the mitigation measure cannot be implemented. 

Therefore, there is no substantial evidence to support the mitigation strategy on which 

[the department] relies to conclude that the construction processes associated with the 

[project] will not result in an illegal taking of the [stickleback].” 

The trial court in a footnote briefly adverted to the public trust doctrine. The trial 

court never ruled that a violation of the public trust doctrine had occurred. Rather, the 

trial court’s ruling addresses the issue of whether the mitigation techniques constitute a 

taking of the stickleback within the meaning of Fish and Game Code section 86. The 

trial court stated: “[T]he principal issue which is currently ripe for adjudication is 

whether the proposed mitigation of the[project’s] impacts on the [stickleback] will result 

in the taking of a fully protected species without first obtaining [an incidental take] 

permit. This issue is a well-defined and concrete controversy that goes to the heart of the 

adequacy of the [environmental impact report].” 
32

7. Overview of the endangered species act and the definition of take

a. definition of take

The Fish and Game Code was originally adopted in 1933. (31 West’s Ann. Fish 

and Game Code (1984) “California Codes,” p. VI.) In 1933, the Legislature defined 

“take” in former Fish and Game Code section 2, “As used in this code: [¶] . . . e. 

‘Take’ means hunt, pursue, catch, capture, or kill.” (Stats. 1933, ch. 73, § 2, p. 394.) In 

1947, former Fish and Game Code section 2, subdivision (e) was amended to state: “As 

used in this code: [¶] . . . e. ‘Take’ means hunt, pursue, catch, capture, kill, or possess, 

or attempt to hunt, pursue, catch, capture, kill, or possess.” (Stats. 1947, ch. 590, § 1, p. 

1588.) In 1957, Fish and Game Code section 2 was recodified in section 86 and amended 

to state, ‘“Take’ means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, 

catch, capture, or kill.” (Stats. 1957, ch. 456, § 2, p. 1310.) The pertinent statutory 

change in 1957 was to delete the term “possess” or an attempt to do so from the 

definition of take. The definition of take today remains the same as it was when Fish and 

Game Code section 2, subdivision (e) was recodified in section 86 in 1957. Thus, today 

the term take is defined in Fish and Game Code section 86, ‘“Take’ means hunt, pursue, 

catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” (See Rep. 

prepared for Sen. Com. on Natural Resources on Assem. Bill No. 3309 (1983-1984, Reg. 

Sess.) as amended Jun. 26, 1984, p. 4 [“For the purpose of these provisions, ‘take’ would 

be defined as the usual acts to hunt, pursue, catch, capture, or kill and would additionally 

embrace acts to harass, harm, shoot, wound, destroy, trap, or collect, which would 

conform to federal law.”].) The reference to federal law is to the federal Endangered 

Species Act which was enacted on December 28, 1973. (16 U.S.C. § 1531 et seq.)
33

b. Assembly Bill No. 2395 (1970 Reg. Sess.)--1970 legislation concerning endangered 

species and fully protected status for the stickleback

We turn now to the 1970 adoption of Assembly Bill No. 2395 (1970 Reg. Sess.). 

Assembly Bill No. 2395 (1970 Reg. Sess.) consisted of new provisions and amendments 

to the Fish and Game Code designed to protect endangered or rare species. There are 

three aspects to the 1970 legislation. Section 1 enacted Fish and Game Code sections 900 

through 903. (Stats. 1970, ch. 1036, § 1, pp. 1847-1848.) The second portion of the 

1970 legislation, sections 3 through 8, either amended or adopted provisions providing 

special protections for specified birds, mammals, reptiles and amphibians, and fish. 

(Stats. 1970, ch. 1036, § 1, pp. 1848-1850.) The third aspect of Assembly Bill No. 2395 

(1970 Reg. Sess.) was the amendment to former Fish and Game Code section 12004, 

subdivision (f) which specified penalties for illegal takes of protected species. (Stats. 

1970, ch. 1036, § 9, p. 1850.) 

In the first part of Assembly Bill No. 2395 (1970 Reg. Sess.), the Legislature 

enacted former Fish and Game Code sections 900 through 903. Former Fish and Game 

Code sections 900 through 903 required the department to: establish criteria for 

establishing if a species or subspecies is endangered or rare (former Fish & G. Code, § 

901); biennially inventory and enumerate this state’s threatened birds, fish, mammals, 

amphibia and reptiles; make a determination concerning a specie’s condition “with 

respect to its being endangered or rare” or becoming so (former Fish & G. Code, § 902); 

and biennially report the foregoing inventory. (Former Fish & G. Code, § 903.) In 

addition, the department was to make recommendations concerning adding or deleting 

species from the “fully protected” category. (Former Fish & G. Code, § 903, subd. (a).5) 

5 Former Fish and Game Code section 903, subdivision (a) stated in part: “The 

department shall submit to the Governor and the Legislature biennially, not later than 

January 1, the first of which shall be submitted no later than January 1, 1972, a full and 

accurate report of the inventory, including recommendations for: [¶] (a) The addition n 

or deletion of endangered and rare species under the fully protected category when 

necessary.”
34

Article 1 of the 1970 legislation is entitled, “California Species Preservation.” (Stats. 

1970, ch. 1036, § 1, p. 1847.) Former Fish and Game Code section 900 stated, “The 

intent of the legislature and the purpose of this article is to preserve, protect and enhance 

the birds, mammals, fish, amphibia, and reptiles of this state.” (Stats. 1970, ch. 1036, § 1, 

p. 1847.) In 1984, Fish and Game Code sections 900 through 903 were repealed and 

replaced with the endangered species act. Some, but not all, 1984 legislative documents 

refer directly or indirectly to the 1970 legislation as the endangered species act. 

(Enrolled Bill Report prepared by Department of Fish and Game, Sep. 11, 1984, pp. 1-2 

[“The California Endangered Species Act became law in 1970.”]; Rep. prepared for 

Assem. Com. on Water, Parks and Wildlife on Assem. Bill No. 3309 as amended April 

23, 1984, p. 2 [“The 1970 Endangered Species Act expressed the Legislature’s concern 

over California’s threatened fish and wildlife, defined ‘rare’ and ‘endangered’, and 

granted the Fish and Game Commission authority to declare certain animals rare or 

endangered.”]; Legislative Analyst, analysis of Assem. Bill No. 3309 (1983-1984 Sess.) 

as amended Apr. 23, 1984, May 18, 1984, p. 1 [“This bill recasts existing law and adds 

new provisions to the California Endangered Species Act of 1970 . . . .”].) 

As noted, former Fish and Game Code section 903, subdivision (b) referred to 

adding or deleting endangered and rare species from the “fully protected” category. The 

second portion of Assembly Bill No. 2395 (1970 Reg. Sess.) involved the “fully 

protected” category of endangered species. The “fully protected” category referred to 

species identified in Fish and Game Code sections 3511 (birds), 4700 (mammals), 5050 

(reptiles and amphibians) and 5155 (fish). (Stats. 1970, ch. 1036, §§ 4-8, pp. 1848-1850.) 

The 1970 legislation established designations of fully protected fish. (Legis. Counsel’s 

Dig., Assem. Bill No. 2395 (1969-1970 Reg. Sess.); 2 Stats. 1970, Summary Dig., p. 142; 

Stats. 1970, ch. 1036, § 8, p. 1849.) New Fish and Game Code section 5515, subdivision 

(a)(1)

6

provided specified protections for the stickleback and other fish. Fish and Game 

6

 As adopted in 1970, Fish and Game Code section 5515, subdivision (i) stated in 

part: “Fully protected fish . . . may not be taken or possessed at any time and no 

provision of this code or any other law shall be construed to authorize the issuance of 
35

Code section 5515, is relied upon by plaintiffs to support their contention that an 

unlawful take of the stickleback will occur. Finally, former Fish and Game Code section 

12004 was amended to clarify the circumstances where violations of specified statutes 

were punishable as misdemeanors. (Stats. 1970, ch. 1036, § 9, p. 1850; Stats. 1969, ch. 

1043, § 1, p. 2028.)

c. the endangered species act and provisions relating to live trapping and transplantation 

carried out for purposes of conservation

In 1984, the Legislature adopted the endangered species act. The endangered 

species act repealed Fish and Game Code section 900 et seq. which, as noted, some 

legislative documents referred to as the “Endangered Species Act of 1970.” In its place, 

the endangered species act adopted Fish and Game Code sections 2050 through 2085. 

The endangered species act is supported by a series of legislative findings and 

declarations including: certain species are threatened with extinction; this threat arises 

because the species’ habitats are endangered with “destruction, adverse modification, or 

severe curtailment, or because of overexploitation, disease, predation, or other factors”; 

such species are of ecological, historical, recreational, esthetic, economic and scientific 

value to Californians; and the conservation and protection of endangered species is a 

matter of statewide concern. (Fish and Game Code section, § 20517, subds. (b) and (c).) 

 

permits or licenses to take any fully protected fish and no such permits or licenses 

heretofore issued shall have any force or effect for any such purpose; except that the 

commission may authorize the collecting of such species for necessary scientific 

research. Legally imported fully protected fish . . . may be possessed under a permit 

issued by the department. [¶] The following are fully protected fish: [¶] (i) Unarmored 

threespine stickleback . . . .” (Stats. 1970 ch. 1036, § 8, pp. 1849-1850.) 

7

 Fish and Game Code section 2051 states in its entirety: “The Legislature hereby 

finds and declares all of the following: [¶] (a) Certain species of fish, wildlife, and 

plants have been rendered extinct as a consequence of man’s activities, untempered by 

adequate concern and conservation. [¶] (b) Other species of fish, wildlife, and plants are 

in danger of, or threatened with, extinction because their habitats are threatened with 

destruction, adverse modification, or severe curtailment, or because of overexploitation, 
36

The endangered species act reflects the state policy to conserve and protect endangered 

species. (Fish & Game, Code § 2052.) State agencies are obligated to seek to conserve 

endangered species and further the purposes of the endangered species act. (Fish & 

Game, Code § 20558.) Conserving a species has as its goal the use of methods and 

procedures which are necessary to make a species no longer in need of the protections of 

the endangered species act. (Fish & G. Code, § 20619.) Among the legislatively 

approved conservation methods is the use of live trapping and transplantation. (Fish & 

G. Code, § 2061.) We shall discuss Fish and Game Code section 2061 with its approval 

of live trapping and transplantation as it applies to this case later in this opinion. 

The endangered species act prohibits the taking of endangered species. Fish and 

Game Code section 2080 states in part, “No person shall . . . take . . . any species . . . that 

the commission determines to be an endangered species . . . , or attempt any of those acts, 

except as provided in this chapter . . . .” As noted, the term take is defined in Fish and 

Game Code section 86. The prohibition against taking any endangered species in Fish 

and Game Code section 2080 is central to the endangered species act. (Environmental 

 

disease, predation, or other factors. [¶] (c) These species of fish, wildlife, and plants are 

of ecological, educational, historical, recreational, esthetic, economic, and scientific value 

to the people of this state, and the conservation, protection, and enhancement of these 

species and their habitat is of statewide concern.” 

8

 Fish and Game Code section 2055 states, “The Legislature further finds and 

declares that it is the policy of this state that all state agencies, boards, and commissions 

shall seek to conserve endangered species and threatened species and shall utilize their 

authority in furtherance of the purposes of this chapter.”

9

 Fish and Game Code section 2061 states in its entirety: ‘“Conserve,’

‘conserving,’ and ‘conservation’ mean to use, and the use of, all methods and procedures 

which are necessary to bring any endangered species or threatened species to the point at 

which the measures provided pursuant to this chapter are no longer necessary. These 

methods and procedures include, but are not limited to, all activities associated with 

scientific resources management, such as research, census, law enforcement, habitat 

acquisition, restoration and maintenance, propagation, live trapping, and transplantation, 

and, in the extraordinary case where population pressures within a given ecosystem 

cannot be otherwise relieved, may include regulated taking.”
37

Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 

44 Cal.4th 459, 507; Watershed Enforcers v. Department of Water Resources (2010) 185 

Cal.App.4th 969, 974.) 

As noted, the department has imposed extensive mitigation requirements on the 

developer. The endangered species act also specifies requirements for mitigation 

measures. Directly pertinent to the approval of the environmental impact report, Fish and 

Game Code section 2053 states in part: “The Legislature further finds and declares that it 

is the policy of the state that state agencies should not approve projects . . . which would 

jeopardize the continued existence of any endangered species . . . if there are reasonable 

and prudent alternatives available consistent with conserving the species . . . . [¶] 

Furthermore, it is the policy of this state and the intent of the Legislature that reasonable 

and prudent alternatives shall be developed by the department, together with the project 

proponent and the state lead agency, consistent with conserving the species, while at the 

same time maintaining the project purpose to the greatest extent possible.” The term 

“project” in Fish and Game Code section 2064 is defined for purposes of the endangered 

species act, ‘“Project’ means project as defined in Section 21065 of the Public Resources 

Code.” 

The role of mitigation requirements imposed by the department is discussed in 

Fish and Game Code section 2052.1: “[I]f any provision of this chapter requires a person 

to provide mitigation measures . . . to address a particular impact on a . . . endangered 

species, the measures or alternatives required shall be roughly proportional in extent to 

any impact on those species that is caused by that person. Where various measures or 

alternatives are available to meet this obligation, the measures or alternatives required 

shall maintain the person’s objectives to the greatest extent possible consistent with this 

section. All required measures or alternatives shall be capable of successful 

implementation. This section governs the full extent of mitigation measures or 

alternatives that may be imposed on a person pursuant to this chapter . . . .” Fish and 

Game Code section 2052.1 does not affect the aforementioned state policy to conserve, 
38

protect, restore and enhance endangered species. Fish and Game Code section 2052.1 

states, “This section shall not affect the state’s obligations set forth in Section 2052.” 

The endangered species act was adopted as part of an amalgamation of Assembly 

Bill Nos. 3270 and 3309 (1983-1984 Reg. Sess.) in 1984. (4 Stats. 1984, ch. 1240, § 5, p. 

4249; Leg. Counsel’s Dig., Assem. Bill No. 3309 (1983-1984 Reg. Sess.) 4 Stats. 1984, 

Summary Dig., pp. 426-427.) The 1984 endangered species act replaced statutes 

prohibiting the importation, take, possession or sale of rare or endangered species as 

determined by the department. (Stats. 1970, ch. 1510, §§ 1-4, pp. 2998-2999; Leg. 

Counsel, Rep. on Assem. Bill No. 3309 (1983-1984 Reg. Sess.) Sep. 17, 1984, p. 4.) 

Documents prepared in connection with Assembly Bill No. 3309 (1983-1984 Reg. Sess.) 

discussed several of its purposes. One important purpose was to provide for more careful

deliberation during California Environmental Quality Act review. (Leg. Counsel, Rep. 

on Assem. Bill No. 3309, op. cit., p. 6.) The Legislative Counsel explained: “This 

legislation would provide a greater degree of protection for endangered and rare 

[threatened] species through that part of the [California Environmental Quality Act] 

process involving State lead agencies, without substantially impairing the ability of state 

agencies to carry out their statutory missions.” (Ibid.) The relationship between the 

endangered species and California Environmental Quality Acts find both direct and 

indirect references in Fish and Game Code sections 2053 through 2055 and 2063 through 

2065. Section 3 of the 1984 endangered species act enacted section 21104.210 which 

requires a state lead agency to consult with the department in preparing an environmental 

impact report. (Stats. 1984, ch. 1240, § 3, p. 4248.) Other legislative documents note 

that both the endangered species and California Environmental Quality Acts impose 

mitigation requirements in connection with projects. (Legislative Analyst, analysis of 

Assem. Bill No. 3309 as amended Apr. 23, 1984, May 18, 1984, pp. 2-3; Assem. Ways 

10

 Section 21104.2 states, “The state lead agency shall consult with, and obtain 

written findings from, the Department of Fish and Game in preparing an environmental 

impact report on a project, as to the impact of the project on the continued existence of 

any endangered species or threatened species pursuant to Article 4 (commencing with 

Section 2090) of Chapter 1.5 of Division 3 of the Fish and Game Code.”
39

and Means Republican Analysis prepared for Assem. Bill No. 3309, May 21, 1984, p. 1.) 

Thus, the endangered species act is tethered to the California Environmental Quality Act. 

We construe them together. (Baker v. Workers’ Comp. Appeals Bd. (2011) 52 Cal.4th 

434, 446; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 

1387.)

The endangered species act is to be liberally construed. (California Forestry Assn. 

v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1545; San 

Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 

601.) This state’s endangered species act is largely patterned on the federal Endangered 

Species Act. (16 U.S.C. § 1531 et seq.; Letter concerning Assem. Bill No. 3309 (1983-

1984 Reg. Sess.) by Assemblymember Jim Costa to Governor George Deukmejian, Aug. 

30, 1984, pp. 1-2; Rep. prepared for Assem. Com. on Water, Parks and Wildlife on 

Assem. Bill No. 3309 (1983-1984 Reg. Sess.) as amended Apr. 23, 1984, p. 1.) And 

decisional authority concerning that federal endangered species act is typically given 

great weight. (San Bernardino Valley Audubon Society v. City of Moreno Valley, supra, 

44 Cal.App.4th at p. 603.) 

8. Forfeiture

The department and the developer argue that plaintiffs failed to exhaust their 

administrative remedies during the comment period as required by section 21177, 

subdivisions (a) and (b).11 After a draft environmental impact report is prepared, the 

11

 Section 21177, subdivisions (a) and (b) state: “(a) An action or proceeding 

shall not be brought pursuant to Section 21167 unless the alleged grounds for 

noncompliance with this division were presented to the public agency orally or in writing 

by any person during the public comment period provided by this division or prior to the 

close of the public hearing on the project before the issuance of the notice of 

determination. [¶] (b) A person shall not maintain an action or proceeding unless that 

person objected to the approval of the project orally or in writing during the public 

comment period provided by this division or prior to the close of the public hearing on 
40

public is entitled to make comments on its contents. The lead agency then prepares a 

final environmental impact report which incorporates the comments to the document. 

(Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 

Cal.3d at p. 391; Banning Ranch Conservancy v. City of Newport Beach (2012) 211 

Cal.App.4th 1209, 1220-1221.) As a general rule, a commenter’s failure to raise an issue 

during the comment period prevents its relitigation in a subsequent mandate proceeding. 

(Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 289-291; see Environmental 

Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 

Cal.App.4th 217, 237.) No plaintiff sufficiently directly raised any issue concerning 

whether a take was expected to occur which violated the endangered species act. 

However, the take issue was raised in Dr. Baskin’s August 8, 2010 letter. An exception 

to the exhaustion of administrative remedies rule in the environmental impact report 

preparation context arises when the issue is presented to the lead agency by a nonlitigant. Here the take issue was raised by Dr. Baskin during the comment period. Thus, 

it can now be asserted by plaintiffs. (Gilroy Citizens for Responsible Planning v. City of 

Gilroy (2006) 140 Cal.App.4th 911, 920; Galante Vineyards v. Monterey Peninsula 

Water Management Dist. (1997) 60 Cal.App.4th 1109, 1118-1121.) 

9. The department’s argument that a taking can only involve mortal injury to an 

endangered species

At issue here is whether there is substantial evidence that department’s approval of 

the project will not result in a “take” of the stickleback. The department and the 

developer argue a take can only occur if an endangered species is killed. We disagree. 

As noted, the term take is defined in Fish and Game Code section 86. The term 

has been defined depending in part upon context. For example, in Environmental 

 

the project before the filing of the notice of determination pursuant to Sections 21108 and 

21152.”
41

Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 

44 Cal.4th at page 507, our Supreme Court explained: “Central to [endangered species 

act] is its prohibition on the taking of an endangered or threatened species. (Fish & G.

Code, § 2080.) To ‘take’ in this context means to catch, capture or kill. (Fish & G.

Code, § 86.)” (See Watershed Enforcers v. Department of Water Resources, supra, 185 

Cal.App.4th at p. 974.) The department relies upon language in a Third Appellate 

District opinion, Environmental Council of Sacramento v. City of Sacramento, supra, 142 

Cal.App.4th at page 1040 (Environmental Council): “We reject any insinuation that the 

definition of “take” under Fish and Game Code section 2081, subdivision (b)(2) 

encompasses the taking of habitat alone or the impacts of the taking. As section 86 of the 

Fish and Game Code makes clear, proscribed taking involves mortality.” 

We disagree with the argument that a take must always involve mortality on the 

part of an endangered species. Here, context supplies the proper analysis. Fish and 

Game Code section 86 uses the disjunctive, to describe a take; to “hunt, pursue, catch, 

capture, or kill” not merely mortality. Moreover, Fish and Game Code section 86 

includes an attempt to “hunt, pursue, catch, capture, or kill” not merely completing any of 

the proscribed conduct. The Environmental Council opinion discusses whether a taking 

of habitat alone or the impact of a take can be unlawful. The Environmental Council

opinion arose in the context of the adequacy of a mitigation measure requiring the 

purchase of a half-acre for habitat reserves for every acre that is developed. 

(Environmental Council, supra, 142 Cal.App.4th at pp. 1038-1041.) At issue was 

whether habitat loss equated with a take of an endangered hawk and snake. That is the 

context in which the mortality issue arose. And, our Supreme Court made clear in 

Environmental Protection Information Center that a take involves the “catch, capture or 

kill” of an endangered species. (Environmental Protection Information Center v. 

California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 507.) Neither the 

department’s environmental impact report, mitigation findings, nor comment responses 

assert a take only occurred when a species member died. Thus, we respectfully reject the 

department’s position that a take can only occur when there is mortality.
42

Our view in this regard is consistent with the federal courts’ discussions of a take 

under the federal Endangered Species Act. As noted, we can examine federal decisions 

in evaluating the scope this state’s endangered species act. (San Bernardino Valley 

Audubon Society v. City of Moreno Valley, supra, 44 Cal.App.4th at p. 601; Assem. Com. 

on Water Parks and Wildlife, Analysis of Assembly Bill No. 3309 as amended April 23, 

1984, p. 2 [“This bill would clarify and strengthen the California Endangered Species 

Law by incorporating key provisions and concepts of the federal Endangered Species Act 

into state law.”] Ninth Circuit Judge Diarmuid O’Scannlain described the scope of a take 

under the federal Endangered Species Act: “The [federal Endangered Species Act] 

makes it illegal to ‘take any such [listed endangered] species within the United States.’ 

16 U.S.C. § 1538(a)(1)(B). The statute defines ‘take’ to mean ‘harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such 

conduct[,]’ id. § 1532(19), and includes federal agencies, officers, and employees among 

those defined as ‘persons’ liable for a taking, id. § 1532(13). Implementing regulations 

promulgated by the Secretary of the Interior further define ‘harass’ as ‘an intentional or 

negligent act or omission which creates the likelihood of injury to wildlife by annoying it 

to such an extent as to significantly disrupt normal behavioral patterns which include, but 

are not limited to, breeding, feeding, or sheltering.’ 50 C.F.R. § 17.3.” (Cold Mountain 

v. Garber (9th. Cir. 2004) 375 F.3d 884, 889 [but for causation required to show a 

violation of the federal Endangered Species Act]; see Babbitt v. Sweet Home Chapter Of

Communities For A Great Ore. (1995) 515 U.S. 687, 696, fn. 9.) Similarly, Ninth Circuit 

Judge Harry Pregerson explained: “16 U.S.C. § 1532(19) defines ‘take’ as any action 

that, inter alia, ‘harms’ wildlife. While Congress did not define ‘harm,’ it explicitly 

intended the term ‘take’ to be construed broadly: ‘Take’ is to be ‘defined in the broadest 

possible manner to include every conceivable way in which a person can “take” or 

attempt to “take” any fish or wildlife.” S.Rep. No. 307, 93d Cong., 1st Sess. (1973), 

reprinted in 1973 U.S.C.C.A.N. 2989, 2995. [¶] It is clearly conceivable that one can 

inflict great harm on a protected species by creating an imminent threat of harm to that 

species. Such a threat therefore falls easily within the broad scope of Congress’ 
43

definition of ‘take.’” (Forest Conservation Council v. Rosboro Lumber Co. (9th Cir. 

1995) 50 F.3d 781, 784.) Nothing in the judicial interpretation of the federal Endangered 

Species Act imposes the strict mortality requirement asserted by the department and the 

developer in our case. 

10. There is substantial evidence no take or possession within the meaning of Fish and 

Game Code sections 86 and 5515, subdivision (a)(1) respectively will occur 

a. stickleback mortality

The most difficult issue to us is whether there will be a take by reason of a killing 

of a stickleback. To us, this is a very close question. As noted, Dr. Swift described the 

process as using nets to keep the stickleback away from the construction areas. In 

addition, Dr. Swift described placing the stickleback in temporary containers from 

construction areas. 

However, there is substantial evidence no death will occur given the extraordinary

measures taken by the department to ensure the sticklebacks’ safety. The department has 

undertaken extensive surveys of stickleback habitat and the Santa Clara River. The 

developer retained Dr. Swift, who the record indicates is one of the leading authorities in 

the field of stickleback protection, to conduct surveys and mitigation strategies. We have 

already extensively described the mitigation measures in BIO 43-48. (See part IV(B)(3), 

supra.) We will not repeat them here. The department has expressly prohibited the 

developer from taking stickleback; i.e., killing any of them. Dr. Swift has explained in 

considerable detail how to relocate the stickleback or to build a temporary river channel 

to bypass the bridge construction sites. Nothing in Dr. Swift’s discussion indicates any 

stickleback will be killed. Plaintiffs argue there will be stickleback deaths. However, the 

extensive mitigation measures coupled with Dr. Swift’s expertise constitute substantial 

evidence no deaths will result. 
44

b. the parties’ contentions concerning whether the mitigation measures themselves 

constitute a taking

Plaintiffs argue that the mitigation measures themselves constitute a take as 

prohibited by Fish and Game Code sections 86 and 5515, subdivision (a)(1). Plaintiffs’ 

argument is as follows: “[T]he Department’s mitigation measure for permanent and 

temporary crossings and diversions of the River (BIO-44) provides that special status 

fish, including stickleback, will be ‘relocated’ from the construction area by U.S. Fish 

and Wildlife Service staff or their agents. . . . Here ‘relocation’ would require ‘capture,’ 

which is expressly prohibited as take under the Fish and Game Code. (Fish & G. Code[,] 

§ 86.) Mitigation measure BIO-44 further provides that any remaining fish after the 

initial relocation will be relocated ‘to suitable habitat outside the [project] area (including 

those areas potentially subject to high turbidity).’ Although the Department suggests that 

relocation would be accomplished by ‘a herding technique’ with ‘block net’ in order to 

‘relocate’ fish, any such relocation of stickleback—especially stranded fish-outside the 

[project] area would be impossible without physically capturing them. Similarly, 

mitigation measure BI0-46 specifically contemplates collection and relocation of 

stickleback by “[federal wildlife service] personnel or their agents.’ . . . Like BIO-44, 

this mitigation measure purports to authorize the capture of stickleback in contravention 

of the express terms of section 5515.” Fish and Game Code section 5515, subdivision 

(a)(1)12 states in part: “Except as provided in Section 2081.7 or 2835, fully protected fish 

12

 The current pertinent provisions of Fish and Game Code section 5515 are: 

“(a)(1) Except as provided in Section 2081.7 or 2835, fully protected fish or parts thereof 

may not be taken or possessed at any time. No provision of this code or any other law 

shall be construed to authorize the issuance of permits or licenses to take any fully 

protected fish, and no permits or licenses heretofore issued shall have any force or effect 

for that purpose. However, the department may authorize the taking of those species for 

necessary scientific research, including efforts to recover fully protected, threatened, or 

endangered species. Prior to authorizing the take of any of those species, the department 

shall make an effort to notify all affected and interested parties to solicit information and 

comments on the proposed authorization. The notification shall be published in the 
45

or parts thereof may not be taken or possessed at any time. No provision of this code or 

any other law shall be construed to authorize the issuance of permits or licenses to take 

any fully protected fish, and no permits or licenses heretofore issued shall have any force 

or effect for that purpose.” As explained earlier, plaintiffs reason placing a stickleback in 

a container, moving it and placing it back into a stream constitutes possession of a fully 

protected species. 

By contrast, the department and the developer argue the use of live trapping and 

transplantation techniques approved in Fish and Game Code section 2061 do not 

constitute a prohibited take or possession. They reason the entire statutory scheme must 

be construed together. To prohibit the use of live trapping and transplantation 

techniques, they assert, would render the language appearing in Fish and Game Code 

section 2061 surplusage. And, they argue that Fish and Game Code section 2055 requires 

the department to utilize its authority to further the purposes of the endangered species 

act. One of the purposes of the endangered species act, according to the developer and 

the department, is to engage in conservation actions which may include live trapping and 

transplantation. (Fish & G. Code, § 2061.) .

The department and the developer have the better argument for reasons we shall 

specify. Unlike the parties who present their cases in largely absolutist terms, we see the 

issue as more subtle. The subtlety arises from the ambiguity of the statutory language. 

On one hand, Fish and Game Code section 5150, subdivisions (a)(1) and (b)(9), enacted 

effective January 1, 1971, prohibits a take or possession of the stickleback. On the other 

 

California Regulatory Notice Register and be made available to each person who has 

notified the department, in writing, of his or her interest in fully protected species and 

who has provided an e-mail address, if available, or postal address to the department. 

Affected and interested parties shall have 30 days after notification is published in the 

California Regulatory Notice Register to provide any relevant information and comments 

on the proposed authorization. [¶] (2) As used in this subdivision, ‘scientific research’ 

does not include any actions taken as part of specified mitigation for a project, as defined 

in Section 21065 of the Public Resources Code. [¶] (3) Legally imported fully protected 

fish or parts thereof may be possessed under a permit issued by the department. [¶] (b) 

The following are fully protected fish: [¶] . . . (9) Unarmored threespine stickleback 

(Gasterosteus aculeatus williamsoni).”
46

hand, the subsequently enacted endangered species act permits live trapping and 

transplantation techniques if performed for conservation purposes. Such techniques, as 

explained by Dr. Swift, can involve the possession and movement of the stickleback in 

containers to other parts of the Santa Clara River. That ambiguity, as we will explain, 

requires an analysis of the legislative histories of the endangered species act and Fish and 

Game Code section 5515.

c. no unlawful taking result from the live trapping and transplantation of the stickleback

At the outset, it is appropriate to clarify the fully protected nature of the species 

listed in Fish and Game Code section 5515, subdivision (a)(1). Although designated as 

fully protected, the enumerated species in Fish and Game Code section 5515, subdivision 

(b) are subject to a taking or possession under specified circumstances. The department 

is expressly authorized to permit a take or possession of a stickleback in order to conduct 

scientific research. (Fish & G. Code, § 5515, subd. (a)(1).) (However, the department is 

expressly prohibited from characterizing a project’s mitigation measure as scientific 

research. (Fish & G. Code, § 5515, subd. (a)(2).)) Even a fully protected fish may be taken 

or possessed if it is part of a specified settlement agreement relating to water-related issues in 

the southern portion of the state. (Fish & G. Code, §§ 2081.7, subd. (a), 5515, subd. (a)(1).) 

And, a take or possession of a fully protected fish is authorized under specific circumstances 

pursuant to the Natural Community Conservation Planning Act. (Fish & G. Code, §§ 2821, 

subd. (a), 5515, subd. (a)(1).) Although characterized in 1970 as fully protected, the 

Legislature has authorized the take or possession of fully protected fish in these 

enumerated circumstances. 

We now turn to whether an unlawful take or possession of the stickleback will 

occur under the department’s mitigation measures. One aspect of the mitigation 

measures issue is easy to resolve. Placing nets up and downstream from a construction 

site does not effectuate a take or possession under any rational definitional theory. 

Placing nets to protect the stickleback from swimming into a construction area does not 
47

constitute an effort to “hunt, pursue, catch, capture, or kill” or attempt to do so. (Fish & 

G. Code, § 86.) Nor does it constitute possession within the meaning of Fish and Game 

Code section 5515, subdivision (a)(1). 

A closer argument is whether efforts to herd the stickleback beyond the netted area 

or place them in containers for movement constitute pursuing, catching or possessionrelated conduct. Fish and Game Code section 86 classifies pursuing or an attempt to 

pursue an endangered species as a take. A sound argument can be made that the herding 

techniques constitute pursuing within the meaning of Fish and Game Code section 86. 

Plaintiffs’ strongest argument is premised upon both Fish and Game Code sections 86 

and 5515, subdivision (a)(1). Plaintiffs argue that placing the stickleback in a container 

and moving it constitutes catching or capturing within the meaning of Fish and Game 

Code section 86. And, as noted, Fish and Game Code 5515, subdivision (a)(1) prohibits 

possession of a fully protected fish. 

However, when the pertinent provisions of the Fish and Game and Public 

Resources Codes are construed together, no unlawful take will occur. This is largely an 

issue of statutory interpretation. Our Supreme Court has specified the standards of 

statutory construction applicable here: ‘“As in any case involving statutory 

interpretation, our fundamental task here is to determine the Legislature’s intent so as to 

effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, 

giving them a plain and commonsense meaning. [Citation.]’ (People v. Murphy (2001) 

25 Cal.4th 136, 142.) “‘When the language of a statute is clear, we need go no further.” 

[Citation.] But where a statute’s terms are unclear or ambiguous, we may “look to a 

variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be 

remedied, the legislative history, public policy, contemporaneous administrative 

construction, and the statutory scheme of which the statute is a part.’” (In re M.M. (2012) 

54 Cal.4th 530, 536.)” (People v. Harrison (2013) 57 Cal.4th 1211, 1221-1222.) We 

construe all the provisions of a statute as a whole: “The statutory language is not read in 

isolation, however. Rather, we consider its terms ‘in the context of the statutory 

framework as a whole in order to determine its scope and purpose and to harmonize the 
48

various parts of the enactment. If the language is clear, courts must generally follow its 

plain meaning unless a literal interpretation would result in absurd consequences the 

Legislature did not intend.’ (Coalition of Concerned Communities, Inc. v. City of Los 

Angeles (2004) 34 Cal.4th 733, 737.)” (Los Angeles Unified School Dist. v. 

Garcia (2013) 58 Cal.4th 175, 186.) And we must give meaning to every word of a 

statute so as to avoid a construction making any language surplusage. (Briggs v. Eden 

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118; Reno v. Baird (1998) 18 

Cal.4th 640, 658.) Finally, we have a duty to harmonize statutes which cover the same 

subject area. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165-166; Pacific 

Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 805.) 

We turn now to the statutory language. Fish and Game Code section 2052 

expressly states it is this state’s policy to conserve endangered species. Conservation 

includes “the use of, all methods or procedures” which are necessary to bring any 

endangered species to the point that it no longer needs protection. (Fish & G. Code, § 

2061.) Among the methods and procedures which may be used to conserve a species are 

“live trapping” and “transplantation.” (Fish & G. Code, § 2061.) Further, it is this state’s 

policy of this state that “reasonable and prudent alternatives” shall be developed by the 

department and the project proponent which are consistent with conserving an 

endangered species. (Fish & G. Code, § 2053.) Fish and Game Code section 2055 

expressly requires state agencies to “conserve endangered species” and utilize their 

authority to further the purposes of the endangered species act. Thus, we conclude: Fish 

and Game Code section 2061 expressly permits the use of live trapping and 

transplantation if done for purposes of conservation; Fish and Game Code section 2055 

requires the department use its authority to further the endangered species act’s purposes 

which includes conservation; and all of this has occurred in the context of the imposition 

of mitigation measures. Hence, the live trapping and transplantation techniques used in 

this case do not constitute an unlawful take or possession. 

Construed as a whole, the statutory scheme permitted the department to approve 

live trapping and transplantation for purposes of conservation under these circumstances. 
49

Both the endangered species provisions and Fish and Game Code section 5515, 

subdivision (a)(1) protections for the stickleback were enacted at the same time in 1970. 

These provisions were enacted together as part of Assembly Bill No. 2395 (1970 Reg. 

Sess.). (Stats. 1970, ch. 1036, §§ 1, 8, pp. 1847-1848, 1849-1850; Leg. Counsel’s Dig., 

Assem. Bill No. 2395 (1970 Reg. Sess.) 2 Stats. 1970, Summary Dig., p. 142.) In 1984, 

the Legislature intended to change the state of the law resulting from the 1970 adoption 

of Assembly Bill 2395 (1970 Reg. Sess.). According to the Legislative Analyst, 

Assembly Bill No. 3309 recast existing law and added new provisions to the 1970 act. 

(Leg. Analyst, analysis of Assembly Bill No. 3309 as amended Apr. 23, 1984, pp. 1-2.) 

The report prepared for the Senate Committee on Natural Resources stated that Assembly 

Bill No. 3309 repealed the 1970 law and replaced it with the endangered species act. 

(Rep. prepared for Sen. Com. on Natural Resources on Assem. Bill No. 3309 (1983 Reg. 

Sess.) as amended Jun. 26, 1984, p. 2.) According to the Legislative Counsel, “Both this 

bill and Assem. Bill No. 3270 . . . would repeal Chapter 1.5 . . . as added by Chapter 1510 

of the Statutes of 1970, and each bill would enact a new Chapter 1.5 which is different.” 

According to the Legislative Counsel, the new legislation enacted the endangered species 

act which provided for “the regulation of specified acts” relating to endangered species. 

(Legis. Counsel, Rep. on Assem. Bill No. 3309 (1983-1984 Reg. Sess.) p. 1.) The

Department of Fish and Game Enrolled Bill Report for Assembly Bill No. 3309, states 

the legislation was intended to amend existing endangered species provisions adopted in 

1970. (Dept. of Fish and Game, analysis of Assem. Bill No. 3309 (1983-1984 Reg. 

Sess.) Sep. 11, 1984, p. 1.) The parks and recreation department explained the legislation 

clarified California’s laws regarding the protection of endangered species and their 

habitats. (Dept. of Parks and Recreation analysis of Assem. Bill No. 3309 (1983-1984 

Reg. Sess.) p. 2.) Thus, the 1984 legislation, which includes for the first time the use of 

live trapping and transplantation for conservation purposes, materially changed state of 

the law from that in 1970. 

Furthermore, there are two other reasons why plaintiffs’ take or possession 

contention is unpersuasive. To begin with, we cannot read Fish and Game Code sections 
50

86 and 5515, subdivision (a)(1) in isolation. Rather, as noted, we must construe them in 

light of the entire statutory scheme. The entire statutory scheme includes the use of live 

trapping and transplantation as a conservation measure. Plaintiffs’ analysis treats Fish 

and Game Code section 2061 and its related provisions as surplusage. We cannot accept 

this line of analysis. (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th 

at p. 1118; Reno v. Baird, supra, 18 Cal.4th at p. 658.) Further, we have a duty to 

harmonize conflicting statutes to the extent rationally possible. The 1984 enactment of 

the endangered species act grants the department the authority, when pursuing a strategy 

of conservation, to use live trapping and transplantation techniques. That is consistent 

with a prohibition on the possession or take of the stickleback when other nonlegislatively approved conservation techniques are utilized. In this way, in the context of 

a mitigation measure, Fish and Game Code sections 86 and 5515, subdivision (a)(1) and 

Fish and Game Code section 2061 can be harmonized. (Sierra Club v. Superior Court, 

supra, 57 Cal.4th at pp. 165-166; Pacific Palisades Bowl Mobile Estates, LLC v. City of 

Los Angeles, supra, 55 Cal.4th at p. 805.) 

11. Other arguments

Two final comments are in order concerning the taking or possessing issue. First, 

plaintiffs in the trial court requested and here ask that we rely upon a post-environmental 

impact report certification opinion prepared by the wildlife service. The document at 

issue is a 2011 Biological Opinion issued by the federal wildlife service. The opinion 

was issued after the environmental impact report’s certification. Such postadministrative agency decision papers are typically inadmissible under these 

circumstances. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p.

579; Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237, 

251.) We decline to consider the post-environmental impact report certification wildlife 

service opinion concerning whether a take occurs under the federal Endangered Species 

Act. 
51

Second, plaintiffs argue that the department has violated its public trust doctrine 

duties. The public trust doctrine provides that fish and wildlife resources are held in trust 

for the people of California by the department. (Fish & G. Code, § 711.7, subd. (a); see 

Environmental Protection Information Center v. California Dept. of Forestry & Fire 

Protection, supra, 44 Cal.4th at p. 515.) No public trust violation has occurred. The 

department has not authorized any unlawful take or possession of the stickleback. And 

the department has properly documented the pertinent analysis in the environmental 

impact report and other planning documents. (Ibid. [“[T]he duty to protect wildlife is 

primarily statutory.”]; Fish & G. Code, § 1801, subd. (h) [state policy concerning 

“preservation, conservation, and maintenance of wildlife resources” limited to situations 

“specifically provided [for] by the Legislature”].) We are not imposing a strict statutory

straightjacket on the public trust doctrine. Here, the department fully complied with its 

obligation to prevent an unauthorized take or possession of an endangered species and 

suitably documented its decisionmaking process. Under these circumstances, where an 

endangered species is in fact protected by extensive mitigation measures under properly 

documented department regulation, no public trust violation has occurred. (See National 

Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 447, fn. 27 [“the noncodified 

public trust doctrine remains important both to confirm the state’s sovereign supervision 

and to require consideration of public trust uses in cases filed directly in the 

courts . . . .”]; Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 

Cal.App.4th 1349, 1363 [public trust doctrine applies to protection of wildlife].) 

C. Cultural Resources 

1. The environmental impact report’s analysis.

The cultural resources discussion relating to Native-American affairs consumes 45 

pages of mainly single-spaced analysis. This discussion draws upon extensive portions 

of the approved specific plan environmental impact report. The specific plan 
52

environmental impact report concludes: the area had a very low density of 

archaeological sites; with but two exceptions, the sites were concentrated in the Santa 

Clara River; its implementation would result in a significant impact on Native-American

cultural resources; and the mitigation measures would be sufficient to reduce the effects 

of development to less-than-significant levels. The specific plan mitigation requirements 

require: mitigating damage to three sites by avoidance and preservation; mitigating

disturbance of one site and, if infeasible, to “relocate, utilize and reinter the disturbed”

remains; and, if during construction additional artifacts were uncovered, an archaeologist 

must take specified corrective action. 

The specific plan environmental impact report describes in detail the steps taken to 

identify Native-American cultural resources. That 297-page discussion is part of the 

administrative record in our case. The December 3, 2010 environmental impact report 

synthesizes the analysis in the specific plan environmental impact report. 

In 1994, a consulting firm, W&S Consultants of Simi Valley, California was 

retained by the developer to evaluate Native-American resources in the specific plan area. 

Phase I of the Native-American environmental process began with an archival records 

search at the University of California at Los Angeles Archaeological Information Center. 

In addition, W&S Consultants reviewed other published records and maps in an effort to 

define the zones most likely to contain Native-American sites. Previous studies had only 

uncovered two archaeological sites within the specific plan area. 

The Phase I archaeological study was conducted in June and July of 1993 and 

February through April of 1994. The Phase I survey of the 12,000-acre study area was 

conducted by Dr. David S. Whitley, Dr. George Gumerman, Dr. Robert Rechtman, 

Joseph M. Simon, Tamara Whitley, and Thomas Haile. Survey crew members spaced 

themselves at approximately 15 to 20 meter intervals and walked the property in 

transects. Using their expertise, the staff identified areas for potential Native-American

habitats. 

In August and September, 1994 W&S Consultants undertook a Phase II study of 

the eight sites within the specific plan area. The purpose of the Phase II study was to 
53

determine the size, nature and significance of the eight archaeological sites. The 

environmental impact report describes the Phase II study process: “During the Phase II 

study, test pits were excavated to ascertain the presence or absence of any subsurface 

archaeological deposit and, where present, the depth and horizontal extent of such 

deposits. Excavation units were then placed in areas where the probability of deposition 

was deemed highest on each site. Conversely, areas of exposed bedrock and erosional 

ridges, hilltops, and slopes were tested less intensively because of the very limited 

likelihood that they could accumulate subsurface archaeological deposits. Excavation 

units were sufficiently dispersed across the general area of each site to insure that 

accurate site boundaries could be established. All artifacts and archaeological indicators 

were collected and bagged by unit level, and stratigraphic profiles were prepared.” The 

results of the Phase II excavations and determinations are documented in a 220-page 

mostly single spaced report prepared for the developer by W&S Consultants. 

The W&S Consultants staff involved in the August and September Phase II 

archaeological test excavations included: Dr. Whitley who served as one of the principal 

investigators; Dr. Rechtman who acted as the field director; and Mr. Simon, who acted as 

one of the principal investigators. Dr. Glenn Russell of the University of California at 

Los Angeles Institute of Archaeology provided chronometric analyses. Dr. Paul Bouey 

conducted obsidian source tracing. Dr. Whitley and Ms. Whitley conducted laboratory 

analyses. Assisting as Native-American monitors of the Phase II testing were Richard 

and Anthony Angulo of the California Indian Foundation. 

During the Phase II investigation, the W&S Consultants staff conducted an 

investigation of a site identified as CA-LAN-2233. As will be noted, the circumstances 

of the discovery and recovery of human remains at the CA-LAN-2233 site serves as a 

basis for the parties’ contentions. The report prepared for the developer dated October 

14, 1994, discusses the discovery of the human remains at the CA-LAN-2233 site. 

During the Phase II investigation, the W&S Consultants staff uncovered a human burial 

in the CA-LAN-2233 site. The W&S Consultants report details discovery of the human 

remains and the notification of both Native-American and coroner’s staff: “Inspector 
54

Nils Linder of the Los Angeles County Coroner’s Office was notified of this discovery, 

while the California Indian Council Foundation was consulted with regards to its 

disposition, and provided monitoring services during its exposure and recording. At the 

request of this last group, it was decided to expose and record as much of the burial as 

possible, but to leave it in place . . . .” The area where human remains were discovered in 

the CA-LAN-2233 site was along the highway right-of-way and therefore outside of the 

project area. As will be noted, the human remains were discovered by Caltrans 

employees along the right-of-way for State Route 126. This was outside the project area 

as will be discussed. There is no basis for concluding that W&S Consultants had 

authority to dig Phase II pits outside of the project area. And, as explained previously, 

the decision to leave the remains in place in consultation with California Indian Council 

Foundation was an entirely reasonable course of action. 

In October 1996, during a widening project of State Route 126, human remains 

were discovered at the CA-LAN-2233 archaeological site. Caltrans staff then proceeded 

in accordance with Guidelines section 15064.5, subdivision (e),

13 which applies to the 

13 Guidelines section 15064.5, subdivision (e) states: “(e) In the event of the 

accidental discovery or recognition of any human remains in any location other than a 

dedicated cemetery, the following steps should be taken: [¶] (1) There shall be no 

further excavation or disturbance of the site or any nearby area reasonably suspected to 

overlie adjacent human remains until: [¶] (A) The coroner of the county in which the 

remains are discovered must be contacted to determine that no investigation of the cause 

of death is required, and [¶] (B) If the coroner determines the remains to be Native 

American: [¶] 1. The coroner shall contact the Native American Heritage Commission 

within 24 hours. [¶] 2. The Native American Heritage Commission shall identify the 

person or persons it believes to be the most likely descended from the deceased Native 

American. [¶] 3. The most likely descendent may make recommendations to the 

landowner or the person responsible for the excavation work, for means of treating or 

disposing of, with appropriate dignity, the human remains and any associated grave 

goods as provided in Public Resources Code section 5097.98, or [¶] (2) Where the 

following conditions occur, the landowner or his authorized representative shall rebury 

the Native American human remains and associated grave goods with appropriate dignity 

on the property in a location not subject to further subsurface disturbance. [¶] (A) The 

Native American Heritage Commission is unable to identify a most likely descendent or 

the most likely descendent failed to make a recommendation within 24 hours after being 
55

accidental discovery of human remains. After consultation with other responsible 

agencies, the environmental impact report describes what occurred: “In December 1996, 

an archaeological investigation was undertaken by Caltrans environmental staff in 

accordance with the Treatment Plan. In the course of locating the burial, Caltrans staff 

encountered four additional interments. (Waugh, 1999). The undertaking was then 

terminated until a revised plan could be formulated and consultation could be effected 

with all appropriate persons. Subsequently, archaeological excavations were conducted 

at the site from February 2 to 28, 1997. During highway construction in August 1997, six 

additional burials were encountered and an emergency excavation was conducted by staff 

and graduate students under the direction of Dr. Philip Walker of the Department of 

Anthropology at the University of California, Santa Barbara . . . , who was contracted to 

serve on a standby basis in case of late discovery. Additional burials were removed 

during this phase of the emergency excavation. A total of 45 burials were recovered 

during the three excavation sessions.” All human remains and the accompanying grave 

goods were interred in accord with the wishes of a designated tribal representative. 

In January, 2004, a second Phase I archaeological study of a portion of the specific 

plan area was conducted by W&S Consultants. This was done in order to update the 

results of the prior 1993 and 1994 field surveys. A total of eight prehistoric 

archaeological sites were identified during the Phase I surveys in 1993 and 1994. 

The department concluded there were no direct impacts as a result of the approval 

of Alternative No. 2. Of the eight archeological sites, only two were subject to the 

resource management plan related construction impacts. (One site, CA-LAN-982H, 

where there was a potential impact, had been removed from development under the 

resource management plan. CA-LAN-982H was donated to the Archaeological 

Conservancy and was no longer subject to any aspect of the project components.) No 

 

notified by the commission. [¶] (B) The descendant identified fails to make a 

recommendation; or [¶] (C) The landowner or his authorized representative rejects the 

recommendation of the descendant, and the mediation by the Native American Heritage 

Commission fails to provide measures acceptable to the landowner.”
56

archeological sites were located in areas where the spineflower preserves are located. 

The two sites were labeled CA-LAN-2133 and CA-LAN-2233. Only these two sites 

were subject to potential indirect impacts. 

The northern portion of the CA-LAN-2233 site was located in one area of 

potential development which is referred to for planning purposes as the Homestead 

Project. That area would be capped with two feet of sterile dirt and no excavations in the 

archeological site would be permitted. As to CA-LAN-2133, the property must be left in 

its current state. A corps’ document prepared by Santa Barbara consulting firm, URS, 

explains: “The proposed treatment for CA-LAN-2133 is avoidance and burial-in-place 

with a public exclusion overlay. The site is located in an area of the project that is not 

planned for urban land uses and is within a natural open space designation within the 

Specific Plan’s designated River Corridor area. The River Corridor is a restricted access 

area, which will exclude the public and potential for vandalism to maintain the site’s 

integrity. Because the site lies within a natural open space area, and habitat for numerous 

sensitive species, no capping is proposed. The grading related to a major roadway is 

expected . . . but should avoid impacts to the site altogether. However, should the road 

engineering require disturbance to the site, then a data recovery program will be 

implemented . . . .” 

2. Procedural aspects

The mandate petition alleges the project area contains the Chumash and Tataviam

Tribes’ ancestral homes. The petition alleges: “[T]he [project] area is rich with these 

tribes’ historic and cultural resources. To the Tataviam and Chumash, any area with 

historic value such as their burial sites, village sites, or sacred sites have deep religious, 

spiritual, and cultural significance. The Tataviam and Chumash thus retain strong 

cultural and religious attachment to the lands and cultural resources within the [project]

area.” According to the mandate petition: these tribal areas will be subject to excavation, 

earthmoving and other disturbance; the project’s development envelope contains tribal 
57

burial sites, sacred grounds, village sites, and unearthed cultural artifacts; for these tribes, 

the condor is of cultural and religious significance; the Chumash Tribe has collected 

condor feathers in the project area which are used for ceremonial offerings and regalia 

and wishes to do so in the future; the project will have an adverse effect on wildlife 

components including condors which are critical components of the tribes’ cultural 

landscape; and the project will have adverse impacts on other Native-American

resources; the earthmoving would have “devastating and irreversible impacts” on the 

historic, cultural and religious resources to the Tataviam and Chumash burial and buried 

cultural artifacts. Finally, the mandate petition alleges the environmental impact report 

does not discuss the effects on the Chumash cultural resources. 

The developer’s and department’s answers allege the Native-American cultural 

resources discussion and mitigation environmental impact report complied with the law. 

In their oppositions to the mandate petition, the developer and the department asserted 

that all Native-American cultural resources issues had been forfeited. They reasoned no 

Native-American cultural resources issues had been raised within the applicable comment 

periods. The forfeiture objections were reiterated at the hearing on the petition. 

The trial court agreed in part with plaintiffs’ contentions. The trial court ruled the 

environmental impact report’s assessment of the project’s impact on Native-American

cultural resources was not supported by substantial evidence. First, the trial court ruled 

that there was no attempt by the developer’s consultant to perform random test pit 

sampling or engaging in any other inquiry in the specific plan area. Second, the trial 

court ruled that the developer’s consultants’ archaeological exhumations were inaccurate, 

incomplete and partial. The trial court adverted to studies conducted by Caltrans 

archaeologists including artifacts not uncovered by the developer’s consultant. The 

statement of decision extensively refers to the studies of the Caltrans archaeologists. 

Third, the trial court questioned the reliability of the developer’s consultants’ conclusions 

in light of a corrected misapprehension as to whether a tribe was extinct. Fourth, the trial 

court found the cultural impact mitigation measures were insufficient. 
58

3. No grounds exist to set aside the environmental impact certification because of errors 

in connection with the Native-American cultural resources discussion

a. forfeiture

The department and the developer argue that plaintiff’s Native-American cultural 

resources were not preserved for presentation in the mandate petition. The public 

comment period for the draft environmental impact report commenced on April 27 and 

closed on August 25, 2009. Section 21117, subdivision (a) states, “An action or 

proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for 

noncompliance with this division were presented to the public agency orally or in writing 

by any person during the public comment period provided by this division or prior to the 

close of the public hearing on the project before the issuance of the notice of 

determination.” There is no pertinent statutory or regulatory requirement of a public 

hearing in connection with an agency’s decision to certify an environmental impact 

report. The comment period must be for a minimum of 30 days. (§ 21091, subd. (a); see 

Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 935.) The exact issue 

raised in a mandate petition must have been presented to the lead agency during the 

comment period. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of 

Directors (2013) 216 Cal.App.4th 614, 623; Sierra Club v. City of Orange (2008) 163 

Cal.App.4th 523, 535-536.) In order for the comments to preserve the right to utilize an 

environmental impact report, they must be raised during the comment period. (Mount 

Shasta Bioregional Ecology Center v. County of Siskiyou, supra, 210 Cal.App.4th at pp.

215-216; Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 537.) The lead 

agency, although it has the discretion to do so, is not obligated to respond to untimely 

comments. (§ 21091, subd. (d)(1); Guidelines, § 15088, subd. (a); Gray v. County of 

Madera (2008) 167 Cal.App.4th 1099, 1110.) Court of Appeal authority holds a failure 

to exhaust administrative remedies contention is reviewed de novo. (Sierra Club v. City 

of Orange, supra, 163 Cal.App.4th at p. 535; Citizens for Open Government v. City of 
59

Lodi (2006) 144 Cal.App.4th 865, 873.) Even if we were to apply a more deferential 

standard of review, we would reach the same conclusion. 

None of the Native-American cultural resources issues which served as the basis 

for the writ of mandate was preserved during the comment period which concluded on 

August 25, 2009. Thus, they may not be utilized as grounds for judicial review. 

Plaintiffs argue that these issues were raised in August 2010 in letters to the department 

by Chumash Ceremonial Elder Mati Waiya and the Wishotoyo Foundation. However, 

these letters were sent after the conclusion of the comment period as extended until 

August 25, 2009. There is no merit to the argument that otherwise generalized criticisms 

regarding the draft environmental impact report were sufficient to preserve the issues 

relied upon by the trial court. 

b. the merits

None of plaintiffs’ contentions may serve as a basis for disapproving the 

environmental impact report because of its failure to adequately address issues relating to 

Native-American cultural resources. First, the department’s cultural impact analysis is 

supported by substantial evidence. As noted, an extensive pre-onsite survey archival 

analysis was conducted by the W&S Consultants’ professionals. The entire project area 

was walked in an ordered manner to determine the existence of Native-American cultural 

resources. Thereafter, excavations occurred in areas which the archival research, prior 

studies and the extensive intensive onsite survey indicated Native-American cultural 

resources were potentially present. 

Plaintiffs argue it is necessary that further testing be done in the project area to 

determine if there were additional Native-American cultural assets present. There was no 

requirement that further random selection test pits be dug. As it was, the limited amount 

of water in the project area made it unlikely that Native-American cultural resources 

could be found in significant quantities. Further, the intensive survey conducted by W&S 

Consultants was consistent with that recommended by the United States Department of 
60

the Interior. (48 Fed. Reg. 44716, 44722 (Sep. 29, 1983).) There was no requirement 

additional research be conducted before certifying the environmental impact report. 

(Association of Irritated Residents v. County of Madera (2003) 167 Cal.App.4th 1383,

1396; Gray v. County of Madera, supra, 167 Cal.App.4th at p. 1125.) 

Second, there is insufficient evidence that W&S Consultants failed to uncover 

burial grounds. Plaintiffs argue human remains were found in an area bisected by State 

Route 126. The area where the human remains were found in 1996 during a Caltrans 

widening project on State Route 126 was the subject of 1994 test pits dug by W&S 

Consultants. This is reflected in the documentation prepared in connection with the 

county specific plan. This documentation was prepared after the conclusion of the Phase 

II investigation conducted by W&S Consultants. However, the undisputed evidence 

indicates that the remains are not within the project area. The discovery of human 

remains in the CA-LAN-2233 site resulted from the W&S Consultants testing in 1994. 

The discovery of human remains during the 1996 Caltrans State Route 126 widening 

project did not require the department to conduct new surveys and the like. 

Third, during the extended comment period provided for by federal law, Mr. 

Waiya and the Wishtoyo Foundation provided documentation concerning past NativeAmerican occupancy of the project site. None of the evidence cited in the two letters 

may serve as a basis for setting aside the environmental impact report certification. As 

noted, it was not presented during the comment period mandated by California law. 

Fourth, in any event, section 4.10 of the environmental impact report constitutes a 

stand-alone assessment of the Native-American cultural impacts of the project. This 

stand alone assessment, relying on the W&S Consultants analysis, was prepared by 

department staff. The environmental impact report references the prior analysis of the 

Native-American cultural impacts developed in connection with the final approval of the 

specific plan. As noted, the specific plan environmental review concluded there was a 

very low density of archeological sites. The environmental impact report extensively 

recites the historical evidence of Native-Americans in the project area and the results of 

the Phase II test pits. In addition, the environmental impact report details the results of 
61

the discovery of probable Native-American remains during the State Route 126 widening 

project discussed previously. There is no merit to plaintiffs’ argument that the 

department ignored the state of the evidence. 

Fifth, the mitigation measures discussed in the environmental impact report 

comply with Guidelines section 15126.4, subdivision (b)(3)(A). Section 2100214

explains that projects should be disapproved, as proposed, if there are feasible mitigation 

alternatives to serious environmental impacts. (See Sierra Club v. State Bd. of Forestry, 

supra, 7 Cal.4th at p. 1229; Citizens of Goleta Valley v. Board of Supervisors, supra, 52 

Cal.3d at p. 565.) An environmental impact report must identify how significant impacts 

to the environment can feasibly be mitigated. (§ 21002.1, subds. (a)-(c)15; Guidelines, § 

14

 Section 21002 states in part, “The Legislature finds and declares that it is the 

policy of the state that public agencies should not approve projects as proposed if there 

are feasible alternatives or feasible mitigation measures available which would 

substantially lessen the significant environmental effects of such projects, and that the 

procedures required by this division are intended to assist public agencies in 

systematically identifying both the significant effects of proposed projects and the 

feasible alternatives or feasible mitigation measures which will avoid or substantially 

lessen such significant effects.”

15

 Section 21002.1, subdivisions (a) through (c) state: “In order to achieve the 

objectives set forth in Section 21002, the Legislature hereby finds and declares that the 

following policy shall apply to the use of environmental impact reports prepared pursuant 

to this division: [¶] (a) The purpose of an environmental impact report is to identify the 

significant effects on the environment of a project, to identify alternatives to the project, 

and to indicate the manner in which those significant effects can be mitigated or avoided. 

[¶] (b) Each public agency shall mitigate or avoid the significant effects on the 

environment of projects that it carries out or approves whenever it is feasible to do so. [¶] 

(c) If economic, social, or other conditions make it infeasible to mitigate one or more 

significant effects on the environment of a project, the project may nonetheless be carried 

out or approved at the discretion of a public agency if the project is otherwise permissible 

under applicable laws and regulations.”
62

15126.4, subd. (a)(1)16; City of Marina v. Board of Trustees of California State 

University (2006) 39 Cal.4th 341, 359.) 

In the case of cultural resources, Guidelines section 15126.4, subdivision (b)(3) 

states in part: “Public agencies should, whenever feasible, seek to avoid damaging 

effects on any historical resource of an archaeological nature. The following factors shall 

be considered and discussed in an [environmental impact] report for a project involving 

such an archaeological site: [¶] (A) Preservation in place is the preferred manner of 

mitigating impacts to archaeological sites. Preservation in place maintains the 

relationship between artifacts and the archaeological context. Preservation may also 

avoid conflict with religious or cultural values of groups associated with the site. [¶] (B) 

Preservation in place may be accomplished by, but is not limited to, the following: [¶] 1. 

Planning construction to avoid archaeological sites; [¶] 2. Incorporation of sites within 

parks, greenspace, or other open space; [¶] 3. Covering the archaeological sites with a 

layer of chemically stable soil before building tennis courts, parking lots, or similar 

facilities on the site; [¶] 4. Deeding the site into a permanent conservation easement.” 

(See California Oak Foundation v. Regents of University of California (2010) 188 

Cal.App.4th 227, 279-280.)

The environmental impact report provides for appropriate mitigation under these 

standards. There are two burial sites at issue; CA-LAN-2233 and CA-LAN-2133. As to 

both locations, the mitigation plan bars development and preserves the archaeological 

sites. Further, as to CA-LAN-2133, a 100-foot buffer has been imposed around the site. 

And to the extent feasible, proposed road construction activities are to avoid CA-LAN2133 and the buffer area. Additionally, the URS Corporation Treatment Plan explains 

why the proposed road should not affect the resources at CA-LAN-2133. The 

environmental impact report and the specific plan provide contingency strategies if the 

roadway unexpectedly intrudes on CA-LAN-2133 or the buffer zone: if preservation is 

16

 Guidelines section 15126.4, subdivision (a)(1) states in part, “An 

[environmental impact report] shall describe feasible measures which could minimize 

significant adverse impacts . . . .” 
63

infeasible, a Phase III data collection (salvage excavation) operations are to be

completed; if additional artifacts are unexpectedly uncovered during grading, an 

archaeologist it to be notified to “stabilize, recover and evaluate such finds”; the site is to 

be preserved by placing water permeable netting and two feet of sterile fill material over 

the area; in the event that a Phase III excavation must occur, it will be done in 

consultation with the Tataviam community; any earth disturbance within 300 feet will 

result in fencing and an additional 50-foot buffer; the discovery of any cultural resources 

will result in the immediate cessation of grading to be followed by an evaluation with a 

Native-American representative; and the discovery of any human remains must be

handled or treated consistent with section 5097.98 and Guidelines section 15064.5, 

subdivision (e). 

Sixth, plaintiffs fault the 1994 W&S Consultants’ report because it erroneously 

states that the Tataviam Tribe is extinct. The erroneous 1994 statement that the Tataviam 

Tribe was extinct was not a finding by W&S Consultants’ staff. Rather, as explained in 

the environmental impact report, it was a citation to the conclusions of a 1978 article. As 

explained in the environmental impact report: “[T]he assertion that the Tataviam Tribe is 

extinct was not a finding of W&S Consultants, but instead was a citation to a statement 

made by Chester King and Thomas C. Blackburn, 1978, on page 536 of the scholarly 

article ‘Tataviam,’ in The Handbook of North American Indians, Volume 8: California, 

edited by Robert F. Heizer, pp. 535-537 (Washington, D.C.: Smithsonian Institution).” 

As the environmental impact report explains, this error, based on a scholarly source, was 

corrected by W&S Consultants in an apology letter to the tribe. In any event, the 

environmental impact report, although citing to the W&S Consultants’ analysis, is the 

product of department staff preparation. The error in the article is attributable not to 

W&S Consultants but to the article’s authors. Nothing in the citation to a scholarly 

article as occurred here may serve as a basis for disapproving an environmental impact 

report.
64

D. The Specific Plan And Alternative 6

The trial court ruled the department unduly relied upon the county’s specific plan 

and failed to conduct an independent review of project impacts. The department 

analyzed eight alternatives; seven (Alternatives 2-7) proposed by the developer. As 

required by Guidelines, section 15126.6, subdivision (e), the department considered a socalled “No project” alternative. Under Alternative 1, none of the contemplated 

development under the resource management plan would occur including establishment 

of the new spineflower preserves. Further, none of the dedicated space in the project area 

would be managed as proposed by the project. In addition, the environmental impact 

report analyzes seven additional alternatives that permit development in the project area. 

Alternative 6 is described in the environmental impact report and findings of fact 

and overriding considerations statement as: eliminating a planned Commerce Center 

Drive bridge; expanding the size of major tributary channels; significantly increasing the 

acreage of the spineflower preserve; facilitating development within the Entrada Planning 

Area; and facilitating no development within the Valencia Commerce Center Planning 

Area. The department’s findings of fact and overriding considerations statement 

discusses 19 different environmental categories. In its findings and overriding 

considerations statement, the department found that Alternative 6 was infeasible. There 

were two core grounds for the department’s infeasibility findings as to Alternative 6. To 

begin with, the department found Alternative 6 did not meet the project objectives. In 

addition, the department found the costs rendered Alternative 6 infeasible.17

17

 The project’s factual findings and overriding considerations statement sets forth 

the following findings concerning Alternative 6: “Based on the whole of the record, [the 

department] finds that Alternative 6 does not meet the project’s objectives and is not 

feasible due to the costs associated with the alternative. Alternative 6 fails to facilitate 

the development of interrelated villages that provide a balance of land uses similar in size 

and proportion to those approved in the Specific Plan. In addition, Alternative 6 

precludes additional commercial development at [Valencia Commerce Center]. 

Therefore, it would not achieve the project objectives. Additionally, the costs for

Alternative 6 would be much greater than the normal costs for a project of this type and
65

The mandate petition alleges that the department has a duty to consider all 

reasonable alternatives. The mandate petition alleges: the environmental impact report 

utilizes an impermissibly narrow set of alternatives; the environmental impact report 

contains no substantial evidence “regarding the infeasibility of alternatives”; the 

environmental impact report fails to evaluate “a genuine environmentally superior 

alternative that combines elements of Alternative 7 with a [conservation plan] and no fill 

of Potrero Canyon”; and the absence of “a true environmentally superior alternative”

prevents a meaningful consideration of project alternatives. 

The statement of decision materially differs from the allegations in the mandate 

petition. The trial court found that Alternative 6 would result only in a small reduction in 

residential units. The trial court ruled, “Nor does such a minor reduction in the number 

of residential units increase costs so significantly as to render this alternative 

economically infeasible.” The trial court found that the department failed to 

independently assess mitigation measures that would reduce the significant 

environmental impacts. Rather, the trial court ruled the department remained “wedded”

to the specific plan.18 These findings were not the result of a direct challenge to the 

project based on a theory articulated by plaintiffs in the mandate petition. 

 

would, therefore, not be reasonable overall. Alternative 6 is, therefore, not practical

economically feasible. Finally, Alternative 6 results in some impacts exceeding the Draft

LEDPA Project, specifically with regards to Traffic and Land Use, and as such, it is not a

feasible alternative.” 

18

 The trial court ruled: “[T]he law requires not only that a public agency 

decision-makers document and consider the environmental implications of their actions, 

but also that [they] refrain from approving projects with significant environmental effects 

if there are feasible alternatives or mitigation measures that can substantially lessen or 

avoid these effects. Thus, the agency must first identify the significant environmental 

effects and then mitigate those adverse effects to the imposition of mitigation measures or 

through the selection of feasible alternatives. And, public agencies must deny approval 

of a project with significant adverse effects when feasible alternatives or feasible 

mitigation measures can substantially lessen such effects. When, as in this case, the 

agency failed to perform an independent analysis and assessment of mitigation measures 

that could substantially lessen or avoid these of facts – electing instead simply to remain 
66

An environmental impact report must describe alternatives to the proposed project. 

(§ 21100, subd. (b)(4); Guidelines, § 15126.6, subds. (a)-(d); Stockton Citizens for 

Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 498.) Additionally, the 

environmental impact report must identify and assess whether a proposed alternative is 

infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 

Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 

Cal.App.4th 1336, 1353.) Among the factors an agency must consider is the economic 

feasibility of a project alternative and consistency with a specific plan. (Guidelines, § 

15126.6, subd. (f)(1)19; The Flanders Foundation v. City of Carmel-by-the-Sea, supra, 

202 Cal.App.4th at p. 622-623.) In assessing economic infeasibility, an agency must 

determine the following, “[W]hether the marginal costs of the alternative as compared to 

the cost of the proposed project are so great that a reasonably prudent property owner 

would not proceed with the rehabilitation.” (Uphold Our Heritage v. Town of Woodside 

 

wedded to an existing Specific Plan configuration – the agency has failed to conduct the 

analysis and to proceed in a manner required by law.” 

19

 Guidelines, section 15126.6, subdivision (f)(1) states: “Rule of reason. The 

range of alternatives required in an [environmental impact report] is governed by a ‘rule 

of reason’ that requires the [environmental impact report] to set forth only those

alternatives necessary to permit a reasoned choice. The alternatives shall be limited to 

ones that would avoid or substantially lessen any of the significant effects of the project. 

Of those alternatives, the [environmental impact report] need examine in detail only the 

ones that the lead agency determines could feasibly attain most of the basic objectives of 

the project. The range of feasible alternatives shall be selected and discussed in a manner 

to foster meaningful public participation and informed decision making. [¶] (1)

Feasibility. Among the factors that may be taken into account when addressing the 

feasibility of alternatives are site suitability, economic viability, availability of 

infrastructure, general plan consistency, other plans or regulatory limitations, 

jurisdictional boundaries (projects with a regionally significant impact should consider 

the regional context), and whether the proponent can reasonably acquire, control or 

otherwise have access to the alternative site (or the site is already owned by the 

proponent). No one of these factors establishes a fixed limit on the scope of reasonable 

alternatives. (Citizens of Goleta Valley v. Board of Supervisors[,supra,] 52 Cal.3d 553; 

see Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 

1745, 1753, fn. 1).”
67

(2007) 147 Cal.App.4th 587, 600; see The Flanders Foundation v. City of Carmel-by-theSea, supra, 202 Cal.App.4th at p. 622.) We review an infeasibility finding for substantial 

evidence. (Id. at p. 621; § 21081.5, subd. (a)(3); Guidelines, § 15091, subd. (a)(3).) 

As noted, at issue here is whether there was improper reliance upon the specific 

plan. The department was authorized by Guidelines section 15126.6, subdivision (f)(1) 

to consider an extant specific plan in assessing infeasibility. More to the point, all 

development, including the assessment of alternatives in an environmental impact report, 

must proceed in a fashion consistent with the specific plan. (Citizens of Goleta Valley v. 

Board of Supervisors, supra, 52 Cal.3d at pp. 570-573; see A Local & Regional Monitor 

v. City of Los Angeles (1993) 16 Cal.App.4th 630, 644-645.) The ambitious specific 

plan calls for transforming currently open space into: a broad range of residential mixeduse and non-residential land uses; the construction of up to 21,308 dwelling units; 629 

acres of mixed-use development; 67 acres of commercial uses; and up to 5 elementary, 1 

junior high and 1 high schools sites; 55 acres of neighborhood parks; a 15-acre lake; an 

18-hole golf course; and public safety and infrastructure facilities sufficient to support the 

contemplated 5 new villages including a 6.8 million gallon per day water reclamation 

plant. 

Substantial evidence supports the department’s economic infeasibility finding as 

to Alternative 6. The department determined in assessing the costs of the project to use a 

standard industry metric such as cost per developable acre. The department relied on the 

following: “For a master-planned development project, it is appropriate to use standard 

industry metrics such as cost per developable acre, that capture the relationship of costs 

of development potential. Like the cost metrics endorsed by the courts in Friends of the 

Earth [v. Hintz (9th Cir. 1986) 800 F.2d 822, 831-834] and Sierra Club v. Flowers [(S.D. 

Fla. 2006) 423 F.Supp.2d 1273, 1333], cost per developable acre is an objective measure 

that is not tied to any subjective or unique characteristic of the applicant. . . . Cost per net 

developable acre is based on verifiable information that is neither proprietary nor 

applicant-specific. In addition, it allows a direct and meaningful comparison of the 

relative costs associated with alternatives of different sizes or different amounts of 
68

development potential, in a way that the total project cost does not. Therefore, it is wellsuited to evaluating whether the costs associated with additional avoidance are 

reasonable, compared either to the typical costs for that type of project or to the 

applicant’s proposed project.” Further, the corps found: “‘Including residential, 

commercial and industrial development, Alternative 6 would result in approximately 

2,310.7 acres of total development area (of the 2,310.7 acres approximately 1,976.4 acres 

would be residential development area). Alternative 6 would yield a total of 2,310.7 net 

developable acres at a total development cost of $2,757,365,000, which yields a 

substantial increase in the average development cost of $1,193,303 [$1,193,148] per net 

developable acre (approximately a 15.0 percent [13.4 percent] increase compared to the 

proposed project). When compared to the modified version of Alternative 3 [Draft 

LEDPA], Alternative 6 would provide approximately 6 acres of additional avoidance of 

waters of the United States (66.3 acres compared to 60.7 acres). Based on the above 

comparison, avoidance of approximately 6 additional acres of waters of the United States 

under Alternative 6 would require a substantial increase in cost per net developable acre 

when compared to the modified version of Alternative 3. In consideration of the 

relatively high cost for the proposed project, a 15% [13.4%] increase in cost per net 

developable acre would not be practicable and, therefore, Alternative 6 would not 

represent the least environmentally damaging practicable alternative.” The department 

quite reasonably could reject Alternative 6 as economically infeasible because of its 

substantially increased costs.

Additionally, substantial evidence supports the department’s finding that 

Alternative 6 was infeasible because it did not meet the project’s objectives. The 

department identified the project’s basic objectives, based upon the specific plan, as 

follows: creating a major new community of interrelated villages consisting of industrial, 

commercial and residential uses; creating various land uses with a wide range of housing; 

designating sites for public facilities for schools, fire stations, parks and a water 

reclamation project; permitting the development of medical care, child care, commercial 
69

recreation, worship and cultural facilities; providing for flexibility to respond to changing 

market conditions; and providing a tax base to fund public services. 

The department concluded Alternative 6 eliminated all new commercial 

development in the Valencia Commerce Center Planning Area. This would lead to a loss 

of 3.4 million square feet of commercial use in the Valencia Commerce Center Planning 

Area. Further, Alternative 6 would only allow for “partial buildout” of the specific plan 

area. The environmental impact report explains in terms of the specific plan area, “[T]he 

Specific Plan’s approved 20,885 residential units would be reduced by 1,098 units to 

19,787 units, and the approved 5.55 [million square feet] of commercial uses would be 

reduced by 216,000 square feet.” Likewise there would be a reduction in the number of 

residential units in the Entrada Planning Area of 1,300 to 425 residences. A comparison 

of Figures 8-1 and 8-5 illustrates the material reduction in development between 

Alternatives 2 and 6; thereby increasing per residence costs and reduced tax base. 

Moreover, Alternative 6 would delete the plan to build a bridge across the Santa Clara 

River at Commerce Center Drive thereby: reducing development in the easternmost 

portion of the project area; prohibiting the development of a coherent village in the 

project’s eastern sector; and impeding the construction of interrelated villages. The corps 

found that the failure to construct the Commerce Center Drive bridge by itself would 

cause Alternative 6 to fail to meet the specific plan objective of creating interrelated 

villages. 

Plaintiffs assert that projected population growth in Los Angeles County did not 

justify a need for future development. As a result, they argue the department improperly 

rejected unspecified alternatives. However, there is substantial evidence by 2040 

population in the county will increase to 12,491,606 persons. This will constitute an 

increase of 2,098,421 residents as compared to the county’s 2009 population. These 

projections, from the California Department of Finance, constitute substantial evidence of 

long-term population growth and a corresponding need for increased housing. Nothing 

that occurred during the corps’ and department’s evaluation of the project alternatives 

permits the environmental impact report to be set aside. 
70

E. Steelhead smolt 

The mandate petition alleges in varying ways that the environmental impact report 

fails to analyze the impacts of runoff from the Santa Clara River. More particularly, 

there are two paragraphs in the mandate petition which relate directly to steelhead smolt. 

For example, plaintiffs allege the environmental impact report fails to analyze and 

mitigate water quality impacts below the “dry gap” in the Santa Clara River and coastal 

marine waters. At another point, the mandate petition alleges: “The [environmental 

impact report] fails to identify the [project]’s significant water quality impacts to southern 

steelhead smolt residing in the Santa Clara River estuary, migrating adult steelhead in the 

Santa Clara River, or migrating steelhead smolt in the Santa Clara River, nor does it 

provide measures to mitigate those impacts to a less than significant effect.” Plaintiffs 

argued in their papers, “The [environmental impact report] fails to analyze the sub-lethal

impacts of the[ project’s] discharges of dissolved copper on juvenile steelhead.” The trial 

court ruled that the environmental impact report failed to adequately discuss the impact 

of dissolved copper discharged from the project area on steelhead smolt. The trial court 

ruled, “The [environmental impact report] fails to consider . . . whether the dissolved 

copper discharged from the [p]roject [a]rea . . . would adversely affect restored habitat for 

endangered steelhead smolt.” 

First, this entire sub-lethal copper discharge/steelhead smolt issue has been 

forfeited because it was not raised during the comment period for the environmental 

impact report. As noted, the public comment period for the draft environmental impact 

report ended on August 25, 2009. Section 21177, subdivision (a) bars consideration of 

that issue unless it raised it during the public comment period or prior to the close of the 

public hearing on the project. (Mount Shasta Bioregional Ecology Center v. County of 

Siskiyou, supra, 210 Cal.App.4th at p. 215; Sierra Club v. City of Orange, supra, 163 

Cal.App.4th at p. 537.) As previously discussed, the exact issue raised in a mandate 

petition must have been presented to the lead agency during the comment period. (North 

Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 
71

Cal.App.4th at p. 623; Sierra Club v. City of Orange, supra, 163 Cal.App.4th at pp. 535-

536.) The issue concerning the steelhead smolt was not raised until almost one year after 

the comment period closed. The first time the issue was raised was in an August 3, 2010 

letter from Jason Weiner, an associate director and staff counsel for Ventura Coastkeeper. 

The comment period expired on August 25, 2009. Here, the steelhead smolt issues were 

not raised during the statutory and regulatory prescribed comment period. Thus, they 

have been forfeited and may not serve as a basis for setting aside the environmental 

impact report. 

Second, even if the issue had been preserved, there is substantial evidence that the 

project’s impacts on the steelhead smolt would be less than significant. The 

environmental impact report describes the Santa Clara River and the so-called “dry gap.” 

The Santa Clara River is described as a perennial stream which extends to about 3.5 miles 

downstream of the Los Angeles and Ventura Counties jurisdictional boundary line. This 

area of the Santa Clara River is dry most of the year with water present only when 

rainfall creates stormwater runoff. This is an area where with the Santa Clara River goes 

underground. The dry gap extends downstream to the confluence of the Santa Clara 

River with the Piru River. The confluence occurs between the area of the communities of 

Piru and Fillmore. 

The Biological Resources’ discussion in the environmental impact report 

references the steelhead smolt. The environmental impact report states steelhead smolt 

have never been reported in Reach 5. This was because all of the steelhead smolt’s 

habitat was below the dry gap. In the Water Quality discussion in the environmental 

impact report, department scientists analyzed copper runoff. In terms of dissolved copper 

runoff, projections are regulated by the California Toxics Rule criteria. The California 

Toxics Rule Threshold for dissolved copper is 32 micrograms per liter. In May 2000, the 

federal Environmental Protection Agency enacted water quality standards for certain 

toxic pollutants. The federal agency action was necessitated because California had 

failed to adopt water quality standards for certain toxic pollutants including dissolved 

copper. (40 C.F.R. § 131.38 (2014); 65 Fed.Reg. 31682, 31711 et seq. (May 18, 2000); 
72

see 33 U.S.C. § 1313(c)(4); Waterkeepers Northern California v. State Water Resources 

Bd. (2002) 102 Cal.App.4th 1448, 1455.) The California Toxics Rule thresholds 

establish ambient water quality objectives. Dissolved copper is often found in urban 

runoff. The environmental impact report concludes, after considerable specific scientific 

analysis: “Although the trace metal loadings are predicted to increase . . . , comparison of 

post-development conditions . . . , to the [California Toxics Rule] shows that the 

dissolved copper . . . concentrations are below the benchmark [California Toxics Rule] 

criteria. The estimated dissolved copper and total lead concentrations are within the 

range of observed concentrations in Santa Clara River Reach 5.” After mitigation, 

department scientists calculate that dissolved copper will be discharged into the Santa 

Clara River in concentrations of 8.4 micrograms per liter. This contrasts with the existing 

copper concentrations in Reach 5 of the Santa Clara River which range from 3.3 to 22.6 

micrograms per liter. The environmental impact report concludes: “With the 

implementation of regulatory requirements, Mitigation Measures SP-4.2-7 and WQ-1, 

comprehensive [project design features], including site design, source control [best 

management practices], treatment [best management practices], and the comparison with 

instream water quality monitoring data and benchmark water quality criteria, Specific 

Plan build-out would not have significant water quality impacts resulting from trace 

metals under Significance Criteria 1 through 3.” As can be noted, after the comment 

period, there was little discussion of the steelhead smolt downstream from the dry area. 

This makes sense because nothing in the comments referenced any issue regarding 

steelhead smolt. Further, the discussion concerning water quality indicates the buildout 

would not produce significant environmental impacts. This was because the copper 

levels would be below the California Toxics Rule threshold. The foregoing constitutes: 

a discussion of the environmental consequences sufficient to provide informed 

environmental review; a finding that copper levels would produce no significant 

environmental impact; and a finding that copper levels would be below the California 

Toxics Rule threshold. This constitutes substantial evidence the project impacts on 

steelhead smolt would be less than significant. 
73

After the department approved the environmental impact report and while the 

corps was receiving comments, the issue of steelhead smolt and copper levels was raised 

by Mr. Weiner. In response during the federal comment period, the department and the 

corps provided additional details. Those comments constitute part of the administrative 

record which we review for substantial evidence. 

The additional discussion after the department issued (but did not certify) the 

environmental impact report reaches the same conclusions. The additional discussion 

verifies that steelhead smolt had been found in Santa Paula Creek. The department 

concluded: “[T]he predicted concentration of dissolved copper in runoff from the 

[project] site after the implementation of proposed project design features . . . would be 

well within the range of concentrations observed within Reach 5 of the River under 

existing conditions. As a result, the proposed [project] would not result in a substantial 

change to existing dissolved copper concentration conditions. Furthermore, the predicted 

concentration of copper and other metals in runoff water would be substantially below 

California Toxics Rule thresholds, which establish ambient water quality objectives for 

protection of aquatic life. The analysis provided by the [environmental impact report]

concluded that with the implementation of proposed mitigation measures, the proposed 

[project] and alternatives would not result in substantial changes to existing water quality 

conditions. Furthermore, the proposed [project] and alternatives would not substantially 

alter the existing concentrations of dissolved copper that currently exist in the Santa Clara 

River; and, therefore, the [project] would not result in significant impacts to steelhead or 

other special-status fish species.” Finally, the additional comments discussed other 

environmental impacts that were unlikely during wet and dry years and during storms. 

The corps agreed with the department’s assessment that the discharge of dissolved copper 

would not have a significant impact on steelhead smolt even during storm events. 

The department and the developer argue the trial court ruled the threshold 

assessment standard utilized in the environmental impact report process was improper. 

The department and the developer cite to the following language in a footnote of the 

statement of decision, “The [environmental impact report] fails to consider, much less 
74

evaluate, whether the dissolved copper discharged from the [project area] (which is four 

times over the steelhead smolt sub-toxicity levels) over the Dry Gap and into the lower 

reaches of the Santa Clara [River] would adversely affect restored habitat for endangered 

steelhead smolt.” We do not believe this constitutes any finding concerning the 

department’s selection of a significance threshold. In any event, substantial evidence 

supports the department’s selection of a threshold for evaluating toxicity issues for 

steelhead smolt. The department relied upon applicable water quality standards including 

the California Toxics Rule. 

F. Spineflower Mitigation Measures And Incidental Take Permit

1. Spineflower

The conservation plan describes the spineflower as a low-growing herbaceous

annual. Germination occurs after onset of late-fall and winter rains. The conservation 

plan states that different cohorts emerge from the seed bank over the winter and early 

spring growing season. Initially formed as a basal rosette, flowering stalks appear as 

days lengthen and flowering stocks are produced in springtime. Flowering generally 

occurs between April and June. The overall size of spineflowers vary. The conservation 

plan describes the leaves and flowering in detail. By late summer, the spineflower plant 

dies. Seeds are eventually released. But the exact mechanism and timing of the seed

release has not been described. The spineflower is protected under the endangered 

species act. It is a candidate species under the federal Endangered Species Act. 

2. Documents

The conservation plan is discussed at length in the environmental report. In 

addition to the environmental impact report, the department issued a series of documents 

concerning spineflower related issues: the findings of fact and overriding considerations 
75

statement; the department’s findings of fact under the endangered species act; a 290-page 

spineflower mitigation and monitoring plan; an incidental take permit for the 

spineflower; and the 308-page final conservation plan. (As noted, an incidental take 

permit allows the take of an endangered species which is incidental to an otherwise 

lawful activity. (Fish & G. Code, §§ 2080-2081; California Native Plant Society v. 

County of El Dorado (2009) 170 Cal.App.4th 1026, 1039.)) 

3. Environmental impact report discussion

As noted, the conservation plan extends beyond the boundaries of the specific plan 

approved by the county. The conservation plan extends also to the Valencia Commerce 

Center and the Entrada Planning Areas. These two latter areas are included within the 

environmental impact report project area because the conservation plan covers a larger 

geographical area than the resource management plan. The environmental impact report 

describes the conservation plan as a component of the project. The conservation plan is 

designed to conserve, manage and permanently protect a system of preserves. Those 

preserves are designed to maximize the long-term persistence of core occurrences of 

spineflower. 

The conservation plan objectives include: providing potential pollinators; 

restoring of degraded or damaged habitat by use of buffers to minimize the effect of 

adjoining land uses; maintaining connectivity between preserves and other protected 

areas (e.g. the Santa Clara River, open areas and utility easements and the like); 

enhancing spineflower populations; and providing a suitable habitat to accommodate 

natural evolutionary and ecological occurrences such as spatial and colonization events. 

The environmental impact report explains the spineflower was believed to be 

extinct until it was rediscovered in 1999 on property in Ventura County in the vicinity of 

Laskey Mesa. Prior to 1999, the last time spineflower had been observed was in 1927 in 

the Castaic area of the county. The Ventura County area where the spineflower was 

discovered has now become an open space preserve. According to the federal wildlife 
76

service, there are only two known locations where the spineflower can be found. One is 

the Ventura County open space preserve near Laskey Mesa while the other is in the 

project area. (Endangered and Threatened Wildlife and Plants; Review of Native Species 

That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings 

on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 72 Fed. 

Reg. 69034, 69082 (Dec. 6, 2007).) The two spineflower populations are approximately 

17 miles apart. 

The distribution of the spineflower in the conservation plan area was documented 

annually during six growing seasons between 2002 and 2007 by Dudek and Associates 

and FLx, a Santa Barbara environmental consulting firm. The environmental impact 

report describes the studies as focused plant surveys. The surveys were floristic in nature 

and conducted pursuant to accepted scientific protocol. The surveys were conducted on 

foot. Locations were documented by global positioning system and aerial photography 

technologies. 

The environmental impact report explains six general occurrences of spineflowers 

have been identified in the project area: Airport Mesa; Grapevine Mesa; Potrero Canyon; 

San Martinez Grande Canyon; Entrada Planning Area; and the Commerce Center 

Planning Area. As we will note, the specific plan created two preserve areas--Airport and 

Grapevine Mesas. The soils at the six sites vary among combinations of sandy and 

gravelly silt and clay loams. The occurrences of spineflower populations in the 

conservation plan area are generally close to one another. Each of the individual growth 

areas is separated from one another by site features such as roadways, ridge lines or State 

Route 126. But there are scattered, intervening spineflower occurrences which are not 

located within the six general population areas. 

In order to identify and design spineflower preserve areas, a habitat suitability 

index was used for the entire study area. All of the developer’s landholdings containing 

spineflower populations are analyzed in the conservation plan. The habitat suitability 

index was developed using the following datasets: vegetation; soils; geology; elevation; 

and aspect. This research did not produce the anticipated results. The environmental 
77

impact report explains: “Unfortunately, the results did not produce the anticipated 

predictive standards. The results of this effort suggested that either the existing habitat 

data may be too coarse to resolve the actual habitat features that spineflower selects or 

that habitat features is not predictive of spineflower occurrence.” Department scientists 

concluded that it would not be prudent to use the “datasets” to evaluate the preserve areas 

nor to develop management and monitoring strategies based on the index. Rather, 

department scientists utilized a representative model test to evaluate the proposed 

preserve areas, “Thus, a representative model was utilized to evaluate the proposed 

spineflower preserve areas, and compared the distribution of the individual attributes 

within each dataset for the entire study area and for the proposed preserve areas.” 

The specific plan requires the developer establish spineflower preserves. Each 

preserve will be deeded in perpetuity to the department as a permanent conservation 

easement. There are two existing preserves in Airport and Grapevine Mesas created by 

the specific plan. The existing Airport Mesa conservation easement is 20 acres. In 

addition, there is a 44-acre preserve at Grapevine Mesa. Also, spineflower preserves will 

be created in the Potrero and San Martinez Grande Canyons and the Entrada Planning 

Area. The total preserve area created by the conservation plan is 167.56 acres plus 

expansion areas. The conservation plan’s preserves are designed to accommodate 

expansion over time. The currently existing spineflower occurrences in the Valencia 

Commerce Center Planning Area will not be preserved. (The spineflower occurrences in 

the Valencia Commerce Center Planning Area consist of approximately 4.2 percent of the 

cumulative growth in the conservation plan space.) 

Surrounding the preserves will be buffers. These buffers are included in the 

167.56-acre total preserve area. The buffers are located on the preserves’ core perimeters 

and the outer preserve boundaries or urban edges. The buffer zone widths were designed 

with adjacent land uses in mind as well as potential edge effects. A buffer represents the 

area within the preserve between the core perimeter and the preserve boundary (urban

edge). Further, site-specific factors were considered in designing the preserves including 

percent slope, micro-topography, vegetation type and density. Other design factors 
78

including brow ditches and swales are to be installed to intercept water before it reaches 

preserve areas. Some development areas have mitigating factors incorporated into the 

design that may offset risk factors. Likewise, fencing will be installed to preclude 

intrusion by humans and vehicles. 

The 2002 through 2007 surveys uncovered only 13.88 acres of actual spineflower 

growth in the specific plan and Entrada Planning Areas. As noted, the total preserve area 

is 167.56 acres. The core growth area is 56.79 acres. The buffer areas occupy 110.77 

acres. And the conservation plan provides for 42.90 acres of expansion areas. An 

expansion area is described as follows in the environmental impact report, “Expansion 

area represents the area interior to the core that is not part of the cumulative area 

occupied.” Thus, the 167.56-acre spineflower preserve figure does not include the 

additional 42.90-acre expansion areas.

The planned preserves materially increase the areas of potential growth beyond the 

13.88 acres of actual spineflower uncovered in the 2004 through 2007 surveys. As 

previously noted, two presently existing preserves have been granted to the department 

under the specific plan. In the Airport Mesa area, the 2002 through 2007 surveys 

indicated 5.22 acres were occupied with spineflowers. The specific plan only provided 

for a 20-acre preserve at Airport Mesa. Under the conservation plan, the Airport Mesa 

preserve area will be dramatically increased to: a core growth area of 26.16 acres; a 

buffer area of 18.82 acres; and an expansion area of 20.94 acres. In the Grapevine Mesa 

area, the specific plan provided for a 44-acre preserve. The 2002 through 2007 surveys 

indicated 4.02 acres had spineflower growth in the 44-acre preserve. Under the 

conservation plan, the Grapevine Mesa preserve will provide for: a core growth area of 

9.01 acres; a buffer area of 37.33 acres; and an expansion area of 4.99 acres. Thus, the 

Grapevine Mesa area will increase from 44 acres to 46.34 acres. 

The conservation plan establishes three new preserve areas in: Potrero Canyon; 

San Martinez Grande Canyon; and the Entrada Planning Area. In the Potrero Canyon 

area, the 2002 through 2007 surveys uncovered only 1.32 acres of spineflowers. Under 

the conservation plan, the Potrero Canyon preserve will consists of: a core growth area 
79

of 4.37 acres; 10.43 acres of buffer; and an expansion area of 3.05 acres. In the San 

Martinez Grande Canyon area, the 2002 through 2007 surveys indicated spineflowers 

populated only 2.29 acres. Under the conservation plan, the San Martinez Grande 

Canyon area preserve will consist of: a core growth area of 8.24 acres; a 26.17-acre 

buffer area; plus a 5.95-acre expansion area. And a new preserve will be established in 

the Entrada Planning Area. The 2002 through 2007 surveys reveal only 1.03 acres were 

occupied by spineflowers. The conservation plan creates a 27.02-acre preserve in the 

Entrada Planning Area which consists of: a 9-acre core area; an 18.02-acre buffer area; 

and a 7.97-acre expansion area. 

The conservation plan does result in the take of 6.06 acres of existing spineflower 

growth areas. Hence, the need for an incidental take permit as the spineflower is a 

protected species under the endangered species act. In the specific plan area, the acreage 

of actually existing spineflower growth which will be taken by location will be: Airport 

Mesa, 2.87 acres; Grapevine Mesa, .78 acres; and Potrero Canyon, .48 acres. No 

spineflower will be taken from the San Martinez Grande Canyon preserve area. In the 

Entrada Planning Area, 1.09 acres of spineflowers will be removed. In the Valencia 

Commerce Center Planning Area, all .85 acres of actual growth will be taken. The 

conservation plan preserves 68.6 percent of the existing spineflower populations but 

dramatically increases the area to allow future growth. 

4. Factual findings and overriding considerations statement

The department’s factual findings and overriding considerations statement 

provides different statistical data. The factual findings provide a broader analysis of 

other data but do not focus on actual growth areas. The department found that with the 

implementation of the mitigating measures, the approval of the conservation plan would 

not have a significant impact on the environment. The department’s factual findings 

identified the following benefits: preserves will include habitat for potential pollinators 

and dispersal agents; the preserve management will allow restoration of degraded and/or 
80

damaged habitats and enhance future growth; site-specific buffers on the parameters of 

actual growth areas will minimize and control adverse edge effects from adjacent land 

use changes; the preserves will maintain biological connectivity between preserves and 

permanently protected and managed open space areas; management in open space areas 

will allow restoration of degraded and/or damaged habitats; the spineflower preserves 

will maximize genetic diversity and overall population size, while capturing the range of 

environmental conditions where other plant populations are present; the habitat will 

accommodate natural evolutionary and ecological processes for the spineflower, such as 

spatial fluctuations and colonization events; and the conservation plan provides 

endowments for the protection of spineflower habitats. 

Further, the department found: “In light of the scale of this [project] and the 

unique opportunities that the subject large private landholding of [the project] provides 

for large-scale conservation and preservation of species and their habitats (specifically, 

the ability to require long-term conservation of 8,500 acres of natural habitat) and 

recognizing that primary land use authority for the development of the [project] site rests 

with Los Angeles County, which has already approved the [s]pecific [p]lan, [the 

department] finds that the above benefits of the [resource management plan/conservation 

plan project] outweigh the unavoidable significant adverse environmental impacts of the

[project]. The benefit of the [resource management plan/conservation plan project], as 

described above, is hereby determined to be a basis for overriding all unavoidable 

project-level and cumulative environmental impacts identified in the [environmental 

impact report] and in these findings.” 

5. Incidental take permit and supporting findings 

The spineflower incidental take permit consists of 59 pages of analyses, charts, 

conditions and data. The permit sets forth milestones which are conditions of issuance 

and maintenance of the permit. Within 45 days, the developer is required to: irrevocably 

offer to dedicate and record the dedication of the preserves mandated by the spineflower 
81

conservation plan; record the same for the adaptive management area next to the San 

Martinez Grande Canyon preserve; fund the first installment for the preserve next to 

Santa Martinez Grande Canyon area ($1,305,309); initiate specified fencing; and 

commence a habitat characterization study. Within one year of the incidental take 

permit’s issuance, a second set of milestones in different planning areas were to be 

completed which involve: millions of dollars of preservation expenditures; insuring 

financial security for future conservation and monitoring expenditures; recordation of 

deed restrictions; and partial implementation of the conservation and monitoring plans. 

The permit requires, prior to the commencement of development activities, that a 

biological monitor be identified. The biological monitor is vested with the authority to 

shut down all development activity. 

The factual findings for the spineflower incidental take permit the taking of 4.85 

acres of the area occupied by the plant. This will result from the buildout of the specific 

plan and Entrada and Valencia Commerce Center Planning Areas. But these impacts 

will, according to the incidental take permit’s factual findings, be minimized and fully 

mitigated. This alleviation will result from the avoidance and mitigation measures 

specified in the environmental impact report and incidental take permit. 

6. Conservation plan

The conservation plan consists of 17 sections: the description of the biological 

goals and objectives of establishing the preserve areas; a species description; an analysis 

of the surveys conducted in 2000 through 2007 in the project area; the environmental 

setting and existing land uses; the methodology used to design the spineflower preserves; 

a separate description of the preserves including buffer distances; a listing of 

management activities designed to minimize or eliminate risk factors from development 

and to achieve the project’s biological goals; a description of an adaptive management 

program which includes plans to monitor the preserves and make adjustments over time; 

a monitoring program which is designed to measure the success of the conservation 
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process, track the viability of spineflower populations and remediate damage resulting 

from wildfires or geological events; the use of short term bonds to fund in perpetuity the 

management, monitoring and reporting requirements imposed by the plan; identification 

of the developer as the party responsible for plan implementation; reporting 

requirements; the schedule for compliance with the monitoring and management 

requirements; conservation and take estimates; and eight pages of supporting scientific 

studies used as references in the preparation of the document. In addition, the 

conservation plan consists of six appendices which include: a listing of invasive 

ornamental plants which are prohibited in landscape areas adjacent to the preserve areas; 

an extensive discussion of strategies for controlling the invasive Argentine ant 

(Linepithema humile) which can adversely potentially affect spineflower population; and 

an adaptive management program module. Portions of this latter part of the appendix 

paralleled and repeated material parts of section 10 of the conservation plan which 

described the adaptive management strategy. 

The conservation plan summarizes its methodology as follows: “[T]he long-term 

conservation of spineflower will be achieved first by establishing a system of preserves to 

protect the core occurrences of spineflower in the project study area, and second, by 

implementing management and monitoring within an adaptive management framework to 

maintain or enhance the protected spineflower occurrences. [¶] The preserve design and 

adaptive management framework proposed in this plan have been developed based on the 

following biological goals and objectives, which describe the desired conditions of (1) 

the spineflower populations, (2) the communities in which the spineflower occurs, and 

(3) the ecosystem processes known or hypothesized to maintain the spineflower 

populations and associated communities. For each goal, a set of objectives provides the 

steps for attaining the goals, and a short explanation or rationale is provided for each 

objective.” This is accomplished by increasing spineflower density within the preserves 

and reducing or preventing “identified stressors or anthropogenic factors” which threaten 

individual and population growth. And because there are gaps in the understanding of 

the ecology of the spineflower, the conservation plan requires practices to be instituted to 
83

increase knowledge of the species. All of this is to be accomplished while maintaining 

native plant diversity within the preserves. 

According to the conservation plan: “In general, more abundant populations (i.e., 

those comprising more individuals) will have a greater probability of persisting and 

maintaining genetic diversity necessary to adapt to a changing environment than smaller 

(less abundant) populations. . . . Management of preserves will be designed to remove 

unnatural barriers to spineflower populations and maintain conditions conducive to 

persistence of a viable seed bank, in order to increase abundance and enhance long term 

population persistence.” The conservation plan also was designed to allow other species 

to flourish and contribute to plant diversity. 

There were aspects of the studies however which did not logically correlate and 

future studies were necessary: “It is important to emphasize that the population numbers 

described above are estimates: spineflower populations are highly aggregated and 

densities vary considerably within the same polygon. Preliminary studies indicate that 

variability between areas is lower than the variability from year to year (Dudek and 

Associates 2006d), although the exact area of occupancy has changed each year. For 

example, in 2002, 2004, and 2007—years of low abundance—spineflower occurred in 

some areas where they did not occur in 2003, a highly abundant year. These results need 

further analyses and will be addressed by future monitoring described in Section 11.0 [of 

the conservation plan]. Analysis of variance (ANOVA) tests of the density of 

spineflower individuals and acres occupied at the five core locations gave contrasting 

results. The area occupied varied more between sites than between years, while density 

varied more annually than between sites. There was no significant interaction between 

year and site when a two-way ANOVA was used, which means all of the sites tended to 

change year to year in a similar fashion. More data are needed, but the preliminary 

interpretation is that preferred spineflower location is controlled by intrinsic

environmental characteristics (e.g., soil type), while population density (and, in turn, 

actual numbers of individuals) is controlled by extrinsic environmental characteristics 

(e.g., rainfall).” 
84

The department qualified the foregoing uncertainty analysis in the next paragraph 

of the conservation plan: “After mapping the boundaries of each polygon, the number of 

individuals was counted/estimated in a rectangular ‘sample estimation area,’ which is a 

subset of the total polygon. The sample estimation area was between 200 centimeters (10 

by 20 centimeters) and 2 meters (1 by 2 meters), depending on various factors (e.g., size 

of the polygon, plant densities, variation in plant densities within the polygon). The 

number of subsets within the total polygon was determined and added/multiplied, 

resulting in a total estimate of the number of individuals of the polygon (e.g., 4 × 125 = 

500; 8 × 12 = 96; 9 × 100 = 900). This number was then rounded to the nearest 

magnitude or multiple of a magnitude (e.g., 500, 100, 1,000). Although the spineflower 

population numbers are expected to overestimate true population densities (Dudek and 

Associates 2006d), the area occupied should be accurate, as it represents completely 

mapped units. The general agreement between population estimates and occupied area 

indicates that, at least for general qualitative analyses, the population estimates are 

adequate.” (Fns. omitted.) We will detail other aspects of the conservation plan in our 

extensive discussion of the merits of plaintiffs’ contentions. The conservation plan 

identifies seven pages of government and private sector scientific studies and documents 

utilized in the development of the preserves. This does not include dozens of scientific 

articles identified by private sector consultants and public entity staff.

7. The petition and the ruling

In the first cause of action for violation of section 21000 et seq., the petition 

alleges that the environmental impact report’s evaluation is defective. The petition 

alleges: the analysis of the project impacts on the spineflower is based on a 

misunderstanding of its population dynamics that is contrary to available scientific 

evidence; the environmental impact report underestimates the project’s impacts on the 

spineflower; the environmental impact report fails to evaluate the effect of permanently 

removing most of the spineflower’s seed bank from the project area on the viability of the 
85

proposed reserves; and the conservation plan and the environmental impact report rely on 

unproven and ineffective mitigation measures. As to the third cause of action for 

violation of the endangered species act, the petition alleges: the spineflower incidental 

take permit authorizes the destruction of approximately 24 percent of its habitat located 

in the specific plan area, i.e., Entrada and Valencia Commerce Center Planning Areas; 

the department has failed to insure that the impacts of the spineflower incidental take 

permit have been fully mitigated; the department has not insured that the conservation 

measures required by the spineflower incidental take permit are capable of successful 

implementation; the department has failed to insure there is adequate funding to 

implement the conservation plan; the department has failed to insure that the issuance of 

the spineflower incidental take permit would not jeopardize the continued existence of 

specified covered species; the department’s conclusions the spineflower incidental take 

permit would not likely jeopardize the continued existence of the covered species are not 

based on the best scientific evidence; those conclusions are not based on other reasonably 

available information; the conservation plan arbitrarily designates some areas as ‘“core 

habitat’” which ignore the spineflower population dynamics and high annual variability; 

the incidental take permit does not minimize or fully mitigate damage to other covered 

species; and the department has violated its duty to protect public trust resources. 

Finally, in the fourth cause of action, the petition alleges that no substantial evidence 

supports the department’s findings that: the impacts of the take of spineflowers will be 

minimized and fully mitigated; the spineflower conservation measures are capable of 

successful implementation; and the issuance of the incidental take permit will not 

jeopardize the continued existence of “the covered species.” 

The trial court ruled the department’s analysis of the spineflower mitigation 

measures was legally impermissible. The trial court ruled there was no substantial 

evidence the proposed mitigation measures were adequate. The trial court ruled the 

department failed to: competently evaluate the potential for growth in the seven 

preserves; provide “useful information” concerning the spineflower habitat; evaluate how 

the spineflower pollinates; conduct research about the existence of seed banks in the 
86

project area; and require the developer to protect seeds banks if they are discovered in the 

area to be developed. The trial court ruled: the developer lacked “any underlying 

scientific understanding of the” spineflower and the department decided to await further 

analysis of the plant’s physical and biological habitat; there was no substantial evidence 

of habitat, ecology and propagation of the spineflower in the record and, “Only the 

creation or restoration of new Spineflower land can mitigate for the loss of any existing 

wildflower habitat.” Finally, the trial court ruled the mitigation plan was not supported 

by “any” substantial evidence and thereby violated unspecified provisions of the 

California Environmental Quality Act. 

8. Substantial evidence supports the department’s mitigation plan determinations

The parties agree we apply a substantial evidence standard of review to the 

mitigation issue. The conservation plan is the result of years’ long extensive,

collaborative and scientific analysis by credentialed scientists. The conservation plan 

resulted from changes occurring in the iterative process. This process was directed by an 

array of department scientists whose names we have listed in the margin.20 In addition, 

the developer’s consultant, Dudek and Associates, utilized 43 biologists in conducting 

surveys and scientific analyses. Spineflower surveys of the conservation plan area were 

conducted by Dudek and Associates, URS Corporation and FLx. Dudek and Associates 

scientists conducted 21 surveys of the project area in order to identify the spineflower 

20

 The scientific staff involved in the preparation of the conservation plan 

included: John Willoughby, M.S., of the federal land management bureau; Sherri Miller, 

M.S., B.S; Kamarul Muri, B.S.; Callie Ford, B.S.; Dr. Phil Behrends; Dr. Jodi McGraw; 

Scott White, M.A., B.A.; Dr. Nathan Gale; Dr. Anujah Parikh; Christopher Julian, B.S.; 

Kevin Hunting, Department Regional Manager; Mary Meyer, M.A., B.A., a department 

plant and ecology scientist; Dennis Bedford, a department environmental scientist; 

Michael J. Mulligan, a regional manager for the department; Mary Ann Showers, the 

department’s lead botanist; Terri Dickerson, the department’s senior environmental 

scientist; Betty Courtney, the department senior environmental scientist; and Dr. Edmund 

J. Pert, the department’s regional manager. 
87

habitat. Those surveys are part of the administrative record. In terms of the 2002 

through 2007 surveys, the conservation plan details the matters studied: “The data 

discussed includes the number and distribution of occurrences and ecological indicators 

such as slope, aspect, vegetation, soils, and pollinators. The data also includes the results 

of the on-site geology and soils testing.”

Moreover, an August 13, 2004 study prepared by Allen E. Seward Engineering, 

Inc. (Seward study) describes the spineflower habitat. The Seward study, which was a 

follow-on to a 2002 analysis, was accomplished utilizing: subsurface investigations 

involving 39 test pits; surface analysis at 175 plant stations; laboratory testing; and 

geologic analyses. The Seward study found geologic and geomorphic conditions that 

were fairly consistent at each occurrence site including: the types of geologic formations 

where spineflowers grow with specified rare exceptions; the largely consistent nature of 

soils where spineflowers grow; the probable subsoil soils composition range which 

support spineflower growth; soil coloration; and the slope gradients where spineflowers 

flourish. 

The conservation plan provides additional information concerning spineflower 

populations and the like. The 2002 through 2007 spineflower population surveys were 

conducted “throughout” the specific plan and Entrada and Valencia Commerce Center 

Planning Areas. The spineflower population dramatically increased between 2004 and 

2006. But in 2007, the population decreased significantly. The size of the population 

correlated to annual rainfall figures—the greater the moisture, the larger the spineflower 

population. 

The conservation plan describes varying factors which affect spineflower 

propagation including the absence of competing species depending on the direction the 

plot faces. This analysis was premised on test-plot experiments at Laskey Mesa, the 

results of which were published in 2003. A second Laskey Mesa study indicates the use 

of herbicides to defoliate followed by planting spineflower produced flowering. And the 

Dudek and Associates studies indicate environmental conditions and competition affect 

spineflower population density. One study relied on by the department was co-authored 
88

by 10 scientists with the California State University, Fullerton. That study, published by 

the California Botanical Society, examined the reproductive factors of pollination 

interactions and germination success including identifying six pollinators which provided 

a majority of visits to spineflowers. The study concluded that the spineflower’s rarity is 

due to the destruction of its habitat—the exact problem the preserves are designed to 

resolve. Further, the authors of the California State University, Fullerton study expressed 

their appreciation to the Dudek and Associates, Inc. and Sapphos Environmental, Inc. 

staffs. 

One study cited in the conservation plan is an extensive analysis prepared by 

Glenn Lukos Associates and Sapphos Environmental Inc. in February 2000 (LukosSapphos). The Lukos-Sapphos study of the spineflower was prepared for the Ahmanson 

Land Company. The Las Virgenes site is the only known area of spineflower growth 

outside the specific plan and Entrada and Valencia Commerce Center Planning Areas. 

The Lukos-Sapphos study concluded the spineflower prefer open habitats, free of shade 

and competing plants and has a wide tolerance for soil properties. The Lukos-Sapphos 

study specifically details propagation (by a diverse set of insects) and germination of the 

spineflower. After summarizing the factors which affect maintenance of the species in 

the Las Virgenes area, the Lukos-Sapphos study concluded, “[T]here is every reason to 

believe that this plant can be restored in historic localities, and successfully managed 

onsite by a combination of methods that incorporate a knowledge of its biology.” 

To sum up, the conservation plan dramatically expands the area for potential 

growth of the spineflower. Between 2002 and 2007 surveys uncovered only 13.88 acres 

of actual spineflower growth in the specific plan and in the Entrada Planning Areas. The 

preserves will expand 13.88 acres of actual spineflower growth to: core growth areas of 

56.79 acres; buffer areas occupying 110.77 acres; and expansion areas of 42.90 acres. In 

the five preserve areas, two of which already exist but will be expanded, the department, 

utilizing recognized biological strategies, expects to dramatically increase the area of 

spineflower growth. 
89

The foregoing constitutes substantial evidence which supports the department’s 

scientific strategies and mitigation findings. In addition, the foregoing constitutes 

substantial evidence that: the take is incidental to an otherwise lawful activity; the 

impacts of the spineflower take have been minimized and fully mitigated; the spineflower 

mitigation requirements are capable of successful implementation; the incidental take 

permit is consistent with the provisions of California Code of Regulations, title 14, 

section 783.0 et seq.; and there is adequate funding to support the spineflower mitigation 

measures. (Fish & G. Code, § 2081, subd. (b)(1)-4).) In addition, the foregoing 

constitutes substantial evidence that: the incidental take permit will not jeopardize the 

spineflower’s continued existence; the department has used the best scientific and other 

information that is reasonably available to make the determination the spineflower’s 

continued existence will not be jeopardized; and the department has utilized such 

information to evaluate the adverse impacts of the taking on the spineflower species 

ability to survive in light of population trends, other threats and further reasonably 

foreseeable impacts. (Fish & G. Code, § 2081, subd. (c).) 

Plaintiffs’ other arguments fall into five general areas. First, plaintiffs argue the 

department admitted it had little knowledge of the spineflower. Plaintiffs reason this lack 

of substantive knowledge therefore supports the trial court’s ruling that the department’s 

mitigation and other spineflower analysis is not supported by substantial evidence. 

Plaintiffs’ argument in this regard takes the department’s cautionary analysis out of its 

context. As noted, the conservation plan indicates that future study is warranted because 

of the variables in spineflower growth and the like. After acknowledging the problems of 

assessing spineflower growth in the context of preserves, the department, as noted, 

expressly stated in the conservation plan, “The general agreement between population 

estimates and occupied area indicates that, at least for general qualitative analyses, the 

population estimates are adequate.” The department acted with candor in evaluating the 

difficulties of protecting an endangered species. This is particularly true in that only one 

other place in the world, in Ventura County, is there a viable spineflower population. 
90

The department’s conclusions in this regard are buttressed by extensive scientific and 

academic research. 

Second, plaintiffs rely on views expressed by Ms. Myers, a department scientist, 

concerning earlier versions of the conservation plan. However, Ms. Myers’s

disagreement with earlier versions of the conservation plan is not pertinent to the issue of 

whether the environmental impact report’s conclusions are supported by substantial 

evidence. (Environmental Council, supra, 142 Cal.App.4th at p. 1042, fn. 5; Preserve 

Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 280.) Third, most of 

plaintiffs’ analysis requires us to reweigh conflicting conclusions offered by Ms. Myers 

and others rather than engage in deferential substantial evidence review. 

Fourth, the department’s comprehensive monitoring plan does not amount to 

deferring appropriate environmental actions. A conservation plan that adapts to changing 

scientific knowledge does not necessarily violate the endangered species act. 

(Environmental Council of Sacramento, supra, 142 Cal.App.4th at pp. 1025-1026.) It is 

appropriate that the department, as it has done so under the conservation plan, require the 

developer to engage in studies concerning spineflower: genetic structure; breeding and 

pollination; habitat; and soil disturbance. Under these circumstances, the requirement 

that future research be conducted concerning the spineflower is not deferring an 

environmental decision--it is sound ecological management. Finally, monitoring the 

developer’s conduct within the preserve areas for a prolonged period of time does not 

constitute deferring an environmental decision. 

Fifth, there was no requirement that a separate habitat conservation plan be 

prepared. An extraordinary amount of scientific inquiry preceded the issuance of the 

environmental impact report and incidental take permit. Under these circumstances, no 

obligation to prepare a separate habitat analysis exists under either the endangered 

species or California Environmental Quality acts. The legal issue before us is whether 

substantial evidence supports the department’s conclusions. It does. We need not 

discuss plaintiffs’ other contentions.
91

9. No abuse of discretion occurred in connection with the issuance of the incidental take 

permit

Insofar as plaintiffs contend the incidental take permit should not have been issued 

(as distinguished from an attack on the environmental impact report), such a challenge is 

without merit. Our Supreme Court has identified the applicable standard of review of an 

agency regulatory decision such as issuance of an incidental take permit: “[T]he standard 

for review of agency decisions in connection with regulatory approvals is generally one 

of abuse of discretion. ‘“Abuse of discretion is established if the respondent [agency] has 

not proceeded in the manner required by law, the order or decision is not supported by 

the findings, or the findings are not supported by the evidence.” [Citations.]’ (Sierra 

Club v. State Bd. of Forestry[, supra,] 7 Cal.4th [at p.] 1236.)” (Environmental 

Protection Information Center v. California Dept. of Forestry And Fire Protection, 

supra, 44 Cal.4th at pp. 478-479.) All of the foregoing analysis as it relates to the 

environmental impact report applies equally to the issuance of the incidental take permit. 

No abuse of discretion occurred.

[Part IV (G) is deleted from publication]

G. Baseline For Assessing Cumulative Impacts Of Greenhouse Gas Emissions And 

Related Significance Analysis 

1. Overview

The trial court ruled the environmental impact report’s selection of a baseline for 

assessing the cumulative impacts of the project’s greenhouse gas emissions was, as a 

matter of law, inappropriate. In addition, the trial court ruled that certain aspects of the 

department’s significance analysis in the environmental impact report is not supported by 
92

substantial evidence. Much of the following discussion involves the Health and Safety 

Code section 38550 goal of reducing greenhouse gas emissions to 1990 levels. 

2. Summary of environmental impact report’s discussion of greenhouse gas emissions

The environmental impact report’s 150-page Global Climate Change analysis 

consists of: an introduction including an analysis of the strategies in the Valencia 

Commerce Center and Entrada Planning Areas which can be expected to reduce 

greenhouse gas emissions; a discussion of how the quantity of greenhouse gas emissions 

are calculated; federal and state imposed requirements including Health and Safety Code 

section 38500 et seq., section 21083.05, Guidelines section 15604 and Green Building 

Standards; a Global Climate Change analysis; a discussion of significance thresholds; the 

greenhouse gas emissions’ impacts on the project and alternatives; and a statement of 

mitigation measures. We will describe the particulars of the environmental impact 

report’s greenhouse gas emissions discussion in greater detail later in this opinion.

3. Trial court’s ruling

a. technical and legal background

The trial court found several errors in the department’s greenhouse gas emissions 

assessment. Before summarizing the trial court’s findings, it is appropriate to provide 

some technical background and define several terms utilized by the parties and the trial 

court. In 2006, Health and Safety Code section 38500 et seq., which is entitled the 

California Global Warming Solutions Act of 2006 (global warming act), was enacted. 

The term “greenhouse gases” is defined by Health and Safety Code section 38505, 

subdivision (g) which is part of the global warming act to include: carbon dioxide;

methane; nitrous oxide; hydrofluorocarbons; perfluorocarbons; sulfur hexafluoride; and 

nitrogen triflouride. More generally, greenhouse gases are described as “any gas that 
93

absorbs infrared radiation in the atmosphere” and, consequently, also include water 

vapor, ozone and hydrochlorofluorocarbons. (POET, LLC v. State Air Resources 

Bd. (2013) 218 Cal.App.4th 681, 699, fn. 3.)

Health and Safety Code section 38550 requires the California Air Resources 

Board (air resources board) to develop a plan to limit statewide greenhouse gas emissions 

to 1990 levels by 2020. Health and Safety Code section 38550 states: “By January 1, 

2008, the state board shall, after one or more public workshops, with public notice, and 

an opportunity for all interested parties to comment, determine what the statewide 

greenhouse gas emissions level was in 1990, and approve in a public hearing, a statewide 

greenhouse gas emissions limit that is equivalent to that level, to be achieved by 2020. In 

order to ensure the most accurate determination feasible, the state board shall evaluate the 

best available scientific, technological, and economic information on greenhouse gas 

emissions to determine the 1990 level of greenhouse gas emissions.” (See Association of 

Irritated Residents v. State Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1490; Utility 

Consumers’ Action Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 694.)

The air resources board has determined, by law, greenhouse gas emissions must be 

reduced to 1990 levels by the year 2020. This is to be accomplished by developing 

actions to reduce greenhouse gas emissions. The lead agency for accomplishing this 

reduction in greenhouse gas emissions is the air resources board. (Health & Saf. Code, § 

38510.) On December 11, 2008, the air resources board issued its 121-page “Climate 

Change Scoping Plan” which proposed a comprehensive set of actions designed to reduce 

overall greenhouse gas emissions. (See Association of Irritated Residents v. State Air 

Resources Bd., supra, 206 Cal.App.4th at p. 1492.)

The air resources board’s scoping plan’s executive summary states, “This plan 

calls for an ambitious but achievable reduction in California’s carbon footprint. 

Reducing greenhouse gas emissions to 1990 levels means cutting approximately 30 

percent from business-as-usual emissions levels projected for 2020, or about 15 percent 

from today’s levels.” The term “business-as-usual emissions levels” refers to what will 

occur if there is no transition to renewable energy technologies and increased energy 
94

efficiency programs. The scoping plan defines the business as usual methodology as a 

means of identifying the quantity of emissions if no greenhouse gas reduction measures 

are undertaken. The scoping plan also utilizes the term “no action taken” scenario to 

describe the level of greenhouse gas emissions if no environmentally appropriate 

corrective action is taken. The planned deviation from the business as usual or no action 

taken scenario is described in the air resources board’s scoping plan thusly: “Significant 

progress can be made toward the 2020 goal relying on existing technologies and 

improving the efficiency of energy use. A number of solutions are ‘off the shelf,’ and 

many ˗ especially investments in energy conservation and efficiency ˗ have proven 

economic benefits. Other solutions involve improving our state’s infrastructure, 

transitioning to cleaner and more secure sources of energy, and adopting 21st Century 

land use planning and development practices.” These terms, business as usual or no 

action taken, appears throughout the statement of decision and in the parties’ discussion 

of the legal issues. Now we turn to the trial court’s findings.

b. statement of decision

First, the trial court ruled judicial evaluation of the threshold determination was 

not reviewed for substantial evidence. Rather, according to the trial court, judicial review 

consists of an assessment of whether the department proceeded in a manner prescribed by 

law in making a threshold determination. The trial court ruled in connection with the 

baseline issue: “Whether or not a proper baseline determination has been proffered by 

the expert is not a question of ‘substantial evidence.’ Rather, the question presented here 

is whether the [department]’s analysis has proceeded in a manner required law by using a 

realistic measure of the impact of the current project on the environment. Thus, the 

standard of review . . . is de novo.” The trial court also ruled: “[T]he use of an improper 

baseline interferes with the [environmental impact report’s] ability to assess the impacts 

of the proposed project. In cases in which a project is being proposed for undeveloped 
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pieces of property . . . , the baseline has been existing environments, rather than some 

hypothetical impacted future environment that might occur without the project.” 

Second, the trial court faulted the department’s analysis concerning greenhouse 

gas emissions. The trial court’s analysis follows. When the environmental report was 

prepared, the air resources board had not yet recommended a return to the 1990 emission 

levels as a basis for a significance determination. The department’s consultant estimated 

the existing activities in the project area resulted in 10,272 metric tons of carbon dioxide 

equivalents emissions. After completion of full development, the consultant estimated 

the annual emission level would be 269,000 metric tons of carbon dioxide emissions. 

According to the trial court, the department concluded the project would not 

significantly affect the environment. The department compared the level of emissions 

after the use of new technologies and environmentally responsible practices with the 

scenario where no changes are made. As noted, if no changes in environmental 

regulation and practices occur, that is referred to as the business as usual or no action 

taken scenario. The trial court ruled: “But, a magnitude change of this size did not

support a finding that the project would have a significant climate change impact. 

Instead, [the department] asked whether this numeric increase would impede the State of 

California’s compliance with [global warming act’s] emissions mandate. If the 

[L]egislature’s mandate could be reached, then it could be concluded that the [project]

would not significantly affect the environment. This single ‘significance determination’ 

is based on the unsubstantiated assumption that [the] new development that is 29% below 

‘business as usual’ . . . is consistent with California’s near-term emissions reduction 

objectives, and therefore, would not result in a cumulatively considerable environmental 

impact on global warming.” (Fns. omitted.) 

The trial court concluded the department’s foregoing analysis was inappropriate: 

“The question to be answered in an [environmental impact report] is not whether this 

project will result in non-compliance with a state-wide legislative objective, but rather 

whether the project will have adverse environmental effects and whether those impacts 

can be avoided or substantially lessened by way of feasible mitigation. A baseline 
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analysis of impacts on the existing environment, therefore, is required to inform decisionmakers of the magnitude (or significance) of the cumulative environmental impact [of the 

project] on greenhouse gas emissions. Whether such a project would assist or defeat (or, 

more likely, have no effect on) the state’s efforts at reducing these levels is not the proper 

question.” 

The trial court continued: “In contravention of [the California Environmental 

Quality Act], the [environmental impact report] presumes, without any substantial 

evidence in the record to support the claim, that because the [air resources board]

Scoping Plan states that California’s overall emissions must be reduced to 29% below 

‘business as usual’ to meet legislative targets, that new developments (such as this one) 

need only reduce greenhouse gases to 29% below ‘business as usual’ to fully mitigate its 

impacts under [the California Environmental Quality Act.] In fact, given that 

opportunities for reducing emissions from the already built environment present greater 

challenges, there is no legitimate basis upon which to presume that expectations for 

minimizing emissions from new developments should be greater. In fact, as recognized 

by the Attorney General, ‘new development[s] must be more [greenhouse gas-]efficient 

than this average, given past and current sources of emissions, which are substantially 

less efficient tha[n] this average, will continue to exist and emit.’” (Fn. omitted.) 

The trial court noted that the air resources board was fully engaged in an effort to 

reduce greenhouse gas emissions in order to comply with the 2020 goals. The trial court 

stated: “The 29% below ‘business as usual threshold’ adopted by [the department] as a 

significance threshold will be largely achieved through compliance with existing and 

anticipated regulatory requirements. Thus, the 31% below ‘business as usual’ conditions 

promised by this [project] - in effect - awards emission reduction ‘points[’] to [the 

developer] for mitigation already required by local or state law.” 

The trial court then criticized the department for misrepresenting the air resources 

boards’ implementation of unspecified portions of Health and Safety Code section 38500 

et seq. The trial court ruled: “In addition, the ‘methodology’ employed in this case did 

not even use the entire mandate under [the air resources board’s] implementation of [the 
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global warming act] to assess environmental significance. Rather, the [department] 

‘cherry picked’ [the air resources board’s] thresholds. There are two different aspects of 

the [air resources board’s] greenhouse gas targets in its plan. Not only does [the air 

resources board] propose a 30 percent reduction of the state’s [business as usual] 

projected emissions in 2020, but it also proposes a ten percent reduction from actual

2002-2004 average emissions. Using the ‘actual’ 2002-2004 greenhouse gas level as a 

‘baseline’ -- which [the air resources board] also proposes as using as a measure of 

compliance with [the global warming act] -- the [project] would be environmentally 

significant if it fails to meet [Health and Safety Code section 38510’s] requirement of 

decreasing greenhouse gases from 2002-2004 levels by 10 percent.” 

The trial court ruled that using a business as usual measure to evaluate whether a 

significant environmental impact resulted would defeat the goals of the global warming 

act. The trial court ruled: “By partially importing a regulatory measure intended to 

address a legislative mandate and using it as a measure of significance in an 

[environmental impact report] approval process, project planners are making the 

achievement of [Health and Safety Code section 38510’s] mandates more difficult. New 

developments of the type under consideration here must actually reduce greenhouse gas 

emissions from the business as usual baseline in order to allow ‘past and current sources 

of emissions,’ which are substantially less efficient than this [project] pre-development, 

to continue to exist and emit.”

The trial court indicated the absence of federal guidance or appellate decisions 

made the department’s greenhouse gas effects task “particularly” problematic. And the 

trial court acknowledged the law does afford “some reasonable discretion” to the 

department. Then, the trial court ruled that the department’s consultant’s conclusion did 

not constitute substantial evidence. According to the trial court, the consultant’s analysis 

of environmental significance was not adequately supported by facts and analysis 

contained in the environmental impact report. The trial court concluded: “As time has 

progressed, there has emerged greater consensus . . . regarding how global climate 

change should be analyzed and which significance criteria are to be used. In further 
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proceedings in this case, that growing guidance will assist decision-makers in the 

evaluation of greenhouse gas emissions from this proposed [project].” (Fn. omitted.) 

4. The parties’ contentions

The department and the developer argue the trial court utilized the wrong standard 

of review. Additionally, the department and the developer contend that the trial court 

mistakenly confused the baseline assessment with the significance determination. In that 

regard, they contend that the environmental impact report adequately addresses both 

assessments. 

Plaintiffs argue that the trial court correctly rejected the department’s greenhouse 

gas emissions analysis in the environmental impact report. Plaintiffs contend the 

substantial evidence test is not the correct standard for making a baseline determination. 

Additionally, adopting the trial court’s analysis, plaintiffs contend that the significance 

analysis utilized an impermissible, illusory environmental baseline. Finally, plaintiffs 

contend that the discussion concerning greenhouse gas emissions and the business as 

usual concept was insufficient. 

5. The department’s baseline determination

As noted, plaintiffs contend that the proper standard of review of an agency 

determination for a baseline analysis is not substantial evidence. Guidelines section 

15125, subdivision (a) sets forth the regulatory requirements for a baseline discussion in 

an environmental impact report: “An [environmental impact report] must include a 

description of the physical environmental conditions in the vicinity of the project, as they 

exist at the time the notice of preparation is published, or if no notice of preparation is 

published, at the time environmental analysis is commenced, from both a local and 

regional perspective. This environmental setting will normally constitute the baseline 

physical conditions by which a lead agency determines whether an impact is significant. 
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The description of the environmental setting shall be no longer than is necessary to an 

understanding of the significant effects of the proposed project and its alternatives.” The 

determination of an environmental baseline for the existing conditions in a project area is 

largely factual in nature. (Neighbors for Smart Rail v. Exposition Metro Line Const. 

Authority, supra, 57 Cal.4th at p. 449; Save Our Peninsula Committee v. Monterey 

County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 120.) If there are differing 

methodologies or opinions by consultants for determining a project’s baseline, it is the 

agency’s duty to decide such disputes. (Ibid.; see Sunnyvale West Neighborhood 

Association v. City of Sunnyvale City Counsel (2010) 190 Cal.App.4th 1351, 1378, 

disapproved on another point in Neighbors for Smart Rail v. Exposition Metro Line 

Const. Authority, supra, 57 Cal.4th at p. 457.) Our Supreme Court has synthesized the 

flexible nature of an agency’s discretion in identifying the baseline physical conditions in 

assessing an environmental impact’s significance: “‘[N]either [the California 

Environmental Quality Act] nor the . . . Guidelines mandates a uniform, inflexible rule 

for determination of the existing conditions baseline. Rather, an agency enjoys the 

discretion to decide, in the first instance, exactly how the existing physical conditions 

without the project can most realistically be measured, subject to review, as with all

[California Environmental Quality Act] factual determinations, for support by substantial 

evidence.’” (Neighbors for Smart Rail v. Exposition Metro Line Const. Authority, supra,

57 Cal.4th at p. 449, quoting Communities for a Better Environment v. South Coast Air 

Quality Management Dist. (2010) 48 Cal.4th 310, 328; see Cherry Valley Pass Acres & 

Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 336.) As a result, we 

respectfully disagree with plaintiffs that we should apply a standard of review other than 

substantial evidence in assessing the department’s baseline analysis. 

The department’s baseline determination is supported by substantial evidence. As 

will be noted, the department identified the amount of greenhouse gas emissions 

currently emanating from the project site. The existing environmental setting typically is 

the baseline. (Guidelines, § 15125, subd. (a); Neighbors for Smart Rail v. Exposition 

Metro Line Const. Authority, supra, 57 Cal.4th at p. 448.) We agree with the department 
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that the trial court’s ruling, as do some aspects of plaintiffs’ analysis, conflated the 

baseline with the significance determination. We need not decide whether that conflation

warrants reversal on its own. Rather, we will address the merits of the significance 

determination. 

6. Substantial evidence supports the department’s greenhouse gas emissions assessments

a. regulatory requirements for a greenhouse gas emissions discussion in an 

environmental impact report

Guidelines section 15064 sets forth the general requirements for determining 

whether a project may have a significant effect on the environment. The environmental 

impact report must discuss the project’s significant environmental impacts. (Guidelines,

§ 15126, subd. (a); North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of 

Directors, supra, 216 Cal.App.4th at p. 625.) Guidelines section 15064.4, subdivision (a) 

requires an agency to determine the significance of greenhouse gas emissions emanating 

from the project. The lead agency’s responsibility is defined as follows: “A lead agency 

should make a good-faith effort, based to the extent possible on scientific and factual 

data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting 

from a project. A lead agency shall have discretion to determine, in the context of a 

particular project, whether to: [¶] (1) Use a model or methodology to quantify 

greenhouse gas emissions resulting from a project, and which model or methodology to 

use. The lead agency has discretion to select the model or methodology it considers most 

appropriate provided it supports its decision with substantial evidence. The lead agency 

should explain the limitations of the particular model or methodology selected for use; 

and/or [¶] (2) Rely on a qualitative analysis or performance based standards.” (See 

North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 

Cal.App.4th at p. 650 [environmental impact report]; Citizens for Responsible Equitable 
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Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 329, 336 

[mitigated negative declaration].)

In assessing the significance of greenhouse gas emissions impacts, the lead agency 

considers three factors. To begin with, the lead agency evaluates the extent to which the 

project affects greenhouse gas emissions when compared to the existing environmental 

setting. (Guidelines, § 15064.4, subd. (b)(1).) Additionally, the lead agency determines 

whether the project greenhouse gas emissions exceed a significance threshold that it 

determines applies to the project. (Guidelines, § 15064.4, subd. (b)(2).) Finally, the 

agency evaluates the extent to which the project complies with regulatory requirements 

imposed by other government agencies for the mitigation of greenhouse gas emissions. 

(Guidelines, § 15064.4, subd. (b)(3); see North Coast Rivers Alliance v. Marin Municipal 

Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 650; Citizens for Responsible 

Equitable Environmental Development v. City of Chula Vista, supra, 197 Cal.App.4th at 

p. 336.) 

b. The environmental impact report’s significance discussion

The environmental impact report relies upon the air resources board’s assessment 

as to the necessary greenhouse gas emissions reductions that must be achieved to comply 

with the 1990 levels. The environmental impact report states: “[The air resources board] 

found, by its emission estimates, that emissions must be reduced about 29 percent below 

the [no action taken] scenario for California to achieve the . . . reduction mandates. [¶] 

The . . . [no action taken] scenario relies on specific assumptions, including assumptions 

relating to electricity generation, vehicle fuel efficiency, and building energy efficiency. 

In particular, [the air resources board] assumed that all new electricity generation would 

be supplied by natural gas plants, no regulatory action would impact vehicle fuel 

efficiency, and building energy efficiency codes would be held at the 2005 . . .

standards.” 
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According to the environmental impact report, worldwide emissions of greenhouse 

gas emissions in 2004 totaled 26.8 billion tons. In 2004, the United States emitted about 

7 billion tons of greenhouse gas emissions. Energy-related fossil fuel combustion results 

in 80 percent of United States greenhouse gas emissions. According to the California 

Environmental Protection Agency, in 2004, California emitted .497 billion tons of 

greenhouse gases. The percentages of greenhouse gas emissions, according to the 

California Environmental Protection Agency in 2004 were: 81 percent emanated from 

fossil fuel combustion; 4 percent from process emissions; 5.6 percent were comprised of 

methane emissions; 6.8 percent resulted from nitrous oxide emissions; and fluorinated 

gases which have a very high global warming potential accounted for 2.9 percent of 

emissions. The highest end use category for greenhouse gas emissions are transportation 

related including industrial and residential uses. 

At present, roughly 10,272 tons of greenhouse gas emissions are estimated to 

emanate from the project site. The department estimated that the project, utilizing new 

environmental efficiencies and strategies, will result in 269,000 metric tons of 

greenhouse gas emissions on an annualized basis. If no action is taken, (the business as 

usual scenario), the annualized total of project greenhouse gas emissions in 2020 will be 

390,046 tons. Thus, in 2020, the emissions of the project will be 31 percent below the 

level if no action were taken (the business as usual scenario). The department compared 

the project with state, national and global greenhouse gas emissions levels. In 2004, 

greenhouse gas emissions totaled: 26.8 billion tons globally; 7 billion tons nationally; 

and 0.480 billion tons for California. By contrast, the project’s discharge at the 

conclusion of the buildout will be: 0.001 percent of global emissions; 0.0038 percent of 

national emissions; and 0.056 percent of statewide emissions. Thus, the department 

calculated on an annualized basis: the present level of greenhouse gas emissions, 10,272 

tons; the project’s emission level if no environmentally protective actions are taken (the 

business as usual or no action taken scenario), 390,046 tons; the project’s emission levels 

if environmental safeguards designed to meet the Health and Safety Code section 38550 

targets, 269,000 tons; and the percentage reduction in emission levels if no effort is made 
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to meet the Health and Safety Code section 38550 targets, 31 percent. According to 

ENVIRON International Corporation, the developer’s consultant, these figures, in terms 

of compliance with the Health and Safety Code section 38550 target, are extremely 

conservative. This is because the statistics do not include the developer’s own efforts to 

reduce further greenhouse gas emissions. 

One final point is an order concerning the foregoing statistical emission data. At 

one place in the environmental impact report, the department states that in 2004,

California emitted 0.497 billion tons of greenhouse gases. Later in the environmental 

impact report, the department states the 2004 emission level was “about” .480 billion 

tons. No party asserts these differing emission tonnage figures are of statistical or legal 

consequence. 

The department declined to make a significance determination based upon these 

numbers. The environmental impact report, in reference to the foregoing statistical data 

states: “The above analysis is not intended to suggest that the proposed [project’s]

emissions are de minimis; instead, it is provided for overall context. In general, the 

combined emissions of projects globally appear to be the primary cause of global climate 

change, even though many [project]-specific emissions appear small when viewed in 

isolation.” 

Additionally, the department noted there is an absence of scientific and factual 

information regarding when particular quantities of greenhouse gas emissions become 

significant. Further, there is no consensus among governmental agencies as to whether a 

particular project may result in a potentially significant impact on greenhouse gas 

emissions. When the environmental impact report was circulated, neither the corps nor 

the department found any other federal, state, regional or local agency had adopted 

greenhouse gas emissions significance thresholds. 

In the response to comments made after the environmental impact report was 

circulated, evidence of other agencies’ adoption of significance thresholds was discussed. 

After the draft environmental impact report was prepared, the department distributed its 

responses to comments. The department noted, as of that date, no statewide agency had 
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promulgated a significance threshold for greenhouse gas emissions. Neither the air 

resources board nor the South Coast Air Quality Management District had promulgated 

significance threshold determination standards. But the San Joaquin Valley Air Pollution 

Control District provided a tiered method of assessing a project’s significance. The San 

Joaquin Valley District developed a significance determination when there was a 29 

percent reduction from a business as usual emissions level. The San Joaquin Valley 

District concluded under those circumstances the greenhouse gas emissions levels should 

be determined to have a less than significant individual and cumulative impact. The 

Sacramento Metropolitan Air Quality Management District recommended that thresholds 

of significance should be related to the Health and Safety Code section 38550 goals. 

According to the Sacramento district, “‘[A] possible threshold of significance could be to 

determine whether a project’s emissions would substantially hinder the State’s ability to 

attain the goals identified in [Health and Safety Code section 38550] (i.e., reduction of 

statewide [greenhouse gas] emissions to 1990 levels by 2020; approximately a 30 percent 

reduction from projected 2020 emissions).’” 

The Bay Area Air Quality Management District adopted a different significance 

determination from that used in the environmental impact report in this case. The Bay 

area district posited three criterion: does the project comply with a qualified greenhouse 

gas reduction strategy?; would the project emit less than 1,100 metric tons of greenhouse 

gas emissions equivalent yearly?; or would the project emit less than 4.6 metric tons of 

greenhouse gas equivalents per service population per year? If the project did not meet 

one of these three criteria, then its greenhouse gas impacts would be deemed significant. 

The environmental impact report acknowledges a significant increase in the 

amount of greenhouse gas emissions from the project site over the existing scenario. The 

environmental impact report states: “[T]he increase, alone, is not sufficient to support a 

significance determination because of the absence of scientific and factual information 

regarding when particular quantities of greenhouse gas emissions become significant (as 

climate change is a global issue). Accordingly, and as discussed further below, the 

analysis also considers whether the proposed [project’s] emissions . . . would impede the 
105

State of California’s compliance with the statutory emissions reduction mandate 

established by [Health and Safety Code section 38550].” 

Rather, than exclusively focus on the emissions differential, the department 

concluded the significance determination should be premised on the Health and Safety 

Code section 38550 target. The department adopted the following significance criterion 

to assess impacts: “[The department] has determined it is appropriate to rely on [the 

global warming act], and specifically Health [and] Safety Code, section 38550, as a 

benchmark and use the statute to inform its judgment as to whether the [project’s]

[greenhouse gas] emissions would result in a significant impact. (See Cal. Code Regs. tit. 

14, § 15064, subd. (f)(1).) Accordingly, the following significance criteria is used to 

assess impacts: [¶] Will the proposed [project’s] [greenhouse gas] emissions impede 

compliance with the [greenhouse gas] emission reductions mandated in [the global 

warming act]?” 

c. significance determination

Once an agency determines an environmental impact report must be prepared, the 

document must contain a discussion of the project’s significant ecological impacts. (§ 

21002.1, subd. (a); Protect The Historic Amador Waterways v. Amador Water 

Agency (2004) 116 Cal.App.4th 1099, 1109 [“Thus, in preparing the [environmental 

impact report], the agency must determine whether any of the possible significant 

environmental impacts of the project will, in fact, be significant.”].) If an agency 

determines that any effect will not be significant, there need only be a brief discussion as 

to why the environmental impacts will be nonserious. (§ 21100, subd. (c); Guidelines, § 

15128; Protect The Historic Amador Waterways v. Amador Water Agency, supra, 116 

Cal.App.4th at p.1109.) 

The department has discretion to select the significance criterion for greenhouse 

gas emissions. (Guidelines, § 15064.4, subd. (a); Citizens for Responsible Equitable 

Environmental Dev. v. City of Chula Vista, supra, 197 Cal.App.4th at p. 336.) The Court 
106

of Appeal for the First Appellate District, Division Four explained a lead agency’s 

responsibilities in assessing the significance of greenhouse gas emissions: “In assessing 

the significance of these emissions, the lead agency should consider the extent to which 

the project may affect emissions levels; whether emissions exceed an applicable 

threshold of significance; and whether the project complies with regulations or 

requirements adopted to implement statewide, regional, or local plans to reduce 

[greenhouse gas emissions].” (North Coast Rivers Alliance v. Marin Municipal Water 

District Board of Directors, supra, 216 Cal.App.4th at p. 650; see Citizens for 

Responsible Equitable Environmental Dev. v. City of Chula Vista, supra, 197 

Cal.App.4th at p. 335.) The use of Health and Safety Code section 38550 as a basis for a 

significance determination has been upheld in two other cases. (Friends of Oroville v. 

City of Oroville (2013) 219 Cal.App.4th 832, 841 [“The City properly adopted Assembly 

Bill 32’s reduction targets for [greenhouse gas] emissions as the threshold-of-significance 

standard in determining whether the [project’s] [greenhouse gas] emissions constituted a 

significant environmental impact.”]; Citizens for Responsible Equitable Environmental 

Dev. v. City of Chula Vista, supra, 197 Cal.App.4th at p. 336 [“Here, the City properly 

exercised its discretion to utilize compliance with [AB 32] as the threshold.”].) 

The department found the impact would be less than significant because the 

project’s emissions were 31 percent below the level that would be expected if no action is 

taken: “The proposed [project] will result in the emission of about 269,000 metric [tons] 

of [greenhouse gases] on an annualized basis (and incorporating vegetation and 

construction emissions). These emissions or 31 percent below the level that would be 

expected if the proposed [project] and resulting development were constructed consistent 

with [the air resources board’s] assumptions for the [board’s] 2020 [no action taken] 

scenario. Because this reduction exceeds the 29 percent reduction required for California 

to achieve the [Health and Safety Code section 38550] reduction mandate, the proposed 

[project] would result in a less-than-significant impact.” The environmental impact 

report assessed the reductions in greenhouse gas emissions if the Health and Safety Code 

section 38550 standards were met. For example, in terms of residential developments, if 
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no action were taken to reform environmental policies, 86,607 tons of greenhouse gases 

would be released into the environment in 2020. But if the environmental reforms 

resulting from the global warming act’s enactment, the residential greenhouse gas 

emissions would be reduced to 59,449 tons annually for a 31 percent reduction. 

No doubt, inherent in the department’s analysis are some projections involving 

uncertainty in evaluating greenhouse gas emissions. However, Guidelines section 15144 

recognizes that an environmental impact report necessarily involves a degree of 

forecasting: “Drafting an [environmental impact report] . . . necessarily involves some 

degree of forecasting. While foreseeing the unforeseeable is not possible, an agency 

must use its best efforts to find out and disclose all that it reasonably can.” (Guidelines, 

§ 15144; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho 

Cordova, supra, 40 Cal.4th at p. 428; Communities for a Better Environment v. City of 

Richmond (2010) 184 Cal.App.4th 70, 96.) Further, Guidelines section 15064.4, 

subdivision (a) requires a lead agency to “make a good-faith effort” to “describe, 

calculate or estimate” the amount of greenhouse gas emissions. Nothing in the 

greenhouse gas emissions section of the environmental impact report contravenes these 

requirements.

7. Plaintiffs’ criticisms of the environmental impact report

Plaintiffs argue: the department used an impermissible illusory baseline; 

disclosure of existing greenhouse gas emissions does not satisfy unspecified portions of 

the California Environmental Quality Act; the air resources board’s business as usual (no 

action taken) standard does not provide a proper baseline for greenhouse gas emissions 

significance analysis; other significance thresholds would have avoided the use of an 

illusory environmental baseline; the analysis in the environmental impact report obstructs 

the goals of unspecified provisions of the global warming act; and the environmental 

impact report improperly takes credit for existing ecological regulations and legislation. 

These contentions have no merit. 
108

The environmental impact report assesses: the current greenhouse gas emissions; 

the anticipated changes resulting from the project’s development; and significance in 

terms of 2020 compliance with Health and Safety Code section 38550. As we have 

explained, utilizing this form of environmental analysis has been expressly approved on 

two occasions by two different Courts of Appeals. (Friends of Oroville v. City of 

Oroville, supra, 219 Cal.App.4th at p. 841; Citizens for Responsible Equitable 

Environmental Dev. v. City of Chula Vista, supra, 197 Cal.App.4th at p. 336.) The 

department declined to solely rely on the increase in greenhouse gas emissions as a 

baseline for determining significance. Further, the department declined to utilize the 

numerical percentages of total worldwide, national and state emissions as the basis for its 

significance determination. This was because the scientific community could not 

quantify when a particular increase was significant. It bears emphasis that the department 

is vested with the discretion to select a threshold to apply to greenhouse gas emissions. 

(Guidelines, § 15064.4, subd. (a); Citizens for Responsible Equitable Environmental Dev. 

v. City of Chula Vista, supra, 197 Cal.App.4th at p. 336.)

Further, the statistical analysis was premised upon an extensive environmental 

evaluation prepared by ENVIRON International Corporation. The October 2009 

ENVIRON International Corporation technical addendum updated its prior calculations 

concerning greenhouse gas emissions. The ENVIRON International Corporation analysis 

was premised in material part on the air resources board scoping plan. Further, the 

updated technical analysis was premised upon: environmental legislation which requires 

electricity sellers to increase renewable energy percentages; an executive order, effective 

November 11, 2008, which requires increased procurement of eligible renewable energy

resources by 2020; new statutory requirements for reducing greenhouse gas emissions by 

2016; and new federal fuel efficiency and emissions standards requirements. 

The analysis in the October 2009 ENVIRON International Corporation technical 

update evaluated various types of emissions. For example, the update identified the 

greenhouse gas emissions from renewable and nonrenewable power sources. In doing so, 

the consultant relied upon the California Climate Action Registry General Reporting 
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Protocol. Further, the consultant referred to the climate action registry database for data 

provided by Southern California Edison Company, the likely energy provider for the 

project area. Also, the October 2009 technical update evaluated emissions resulting from 

the construction of 6,346 residences in the project area. The technical assessment was 

premised upon an energy modeling package approved by the California Energy 

Commission. The analysis was based upon various models for residences compliant with 

2005 and 2008 versions of the California Building Standards Code. (Tit. 24, Cal. Code 

Regs.) In addition, the technical update calculated emissions per dwelling unit assuming 

the developer was able to provide a 15 percent improvement over California Building 

Standards Code requirements. 

Also, the ENVIRON International Corporation update evaluated nonresidential 

power usage. Much of the data was taken from a 2006 California Energy Commission 

report on commercial end-use power usage. The nonresidential power usage analysis 

evaluated separate scenarios depending upon compliance with the 2008 California 

Building Standards Code requirements. A separate analysis was made if solar panels 

were utilized in nonresidential development and for each design alternative. Much of the 

source materials for the ENVIRON International Corporation analysis were from 

California Energy Commission documents. 

Additionally, the technical update evaluated greenhouse gas emissions from 

municipal sources in the project area. Among the municipal sources evaluated were: 

water distribution and reclamation facilities; vehicle use in connection with water 

distribution and reclamation; swimming pools; and recreation centers under each of the 

design alternatives. Most of these calculations relied upon documents provided by: the 

California Climate Action Registry Database; the California Energy Commission; studies 

by other municipalities; federal Environmental Protection Agency energy department 

studies; and academic studies. 

Based upon this data, the ENVIRON International Corporation analysis evaluated 

greenhouse gas emissions for each design municipal sources alternative if no action were 

taken to improve environmental practices. In addition, the technical update evaluated 
110

municipal greenhouse gas emissions if sounder environmental practices were adopted. 

The source information for these comparisons were analyses prepared by the California 

Energy Commission, other municipalities, federal agencies, and the air resources board. 

There is no merit to plaintiffs’ challenges to the department’s environmental impact 

report and the consultants’ analysis. The department’s environmental baseline and 

significance conclusions, premised in part upon the ENVIRON International Corporation 

technical update and the air resources board scoping report, are supported by substantial 

evidence. 

Only one other of plaintiffs’ arguments warrants further explicit analysis. 

Plaintiffs infer that Deputy Attorney General Timothy E. Sullivan has raised issues 

pertinent to the present environmental impact report. In fact, in his November 4, 2009 

letter, Mr. Sullivan addressed a staff report concerning greenhouse gas emissions 

prepared by the San Joaquin Valley Air Pollution Control District. Plaintiffs rely on Mr. 

Sullivan’s following comments: “Because ‘business as usual’ for a development project 

is defined by the Staff Report as what was typically done in similar projects in the 2002-

2004 timeframe, and requirements affecting [greenhouse gas] emissions have advanced 

substantially since that date, it appears that the Air District’s proposal would award 

emission reduction ‘points’ for undertaking mitigation measures that are already required 

by local or state law. [¶] Similarly, we are concerned that project proponents could 

‘game’ the system. Under the current proposal, each project will be considered against a 

hypothetical project that could have been built on the site in the 2002-2004 time period. 

It is not clear why the project should be compared against a hypothetical project if that 

hypothetical project could not legally be built today, and the approach would appear to 

offer an incentive to project proponents to artificially inflate the hypothetical project to 

show that the proposed project is, by comparison, [greenhouse gas] efficient.” (Fns. 

omitted.) 

For a multitude of reasons, Mr. Sullivan’s November 4, 2009 letter, by itself or in 

conjunction with other analyses, does not permit the environmental impact report to be 

set aside. Those reasons include: on November 4, 2009, Mr. Sullivan was not evaluating 
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the present environmental impact report; Mr. Sullivan was explaining the difficulty of 

merely applying Health and Safety Code section 38550 and Executive Order S-03-05 

requirements to future unspecified hypothetical projects; the environmental impact report 

in this case sets a specific environmental objective--exceeding the Health and Safety 

Code section 38550 standards; and the environmental impact report does not discuss a 

mere hypothetical project but concretely identifies the number of greenhouse gas 

triggering facilities, activities and the anticipated emissions levels. Finally, the developer 

correctly notes that the Attorney General has taken no position in connection with the 

present environmental impact report. Mr. Sullivan’s November 4, 2009 discussion about 

the San Joaquin Valley air pollution district’s staff report does not permit the 

environmental impact report’s certification to be set aside. 

Plaintiffs’ argument is that the environmental impact report did not examine 

existing onsite emissions, the project as originally conceived, as well as projected 

greenhouse gas emissions’ impacts have no merit. The environmental impact report 

analyzed the project if no action was taken. The project as originally conceived was not 

hypothetical. It consisted of anticipated real construction on and development of

presently open space. Plaintiffs’ repeated characterizations some hypothetical project 

was analyzed have no merit. Nor is there any merit to the argument that the department 

was required to adopt baseline and significance analysis utilized by others. It was the 

department’s obligation to select an appropriate baseline and there was no requirement 

that analysis adopted by others be utilized in the environmental impact report. Nor does 

utilization of the Health and Safety Code section 38550 targets obstruct the goals of the 

global warming act. Finally, the authority cited by plaintiffs is neither controlling nor 

does it provide a ground to set aside the environmental impact report’s certification. We, 

with respect, reject plaintiffs’ challenges to the greenhouse gas analysis in the 

environmental impact report.
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[The balance of the opinion is to be published]

V. DISPOSITION

The judgment is reversed. Upon remittitur issuance, judgment is to be entered in 

favor of defendant, California Department of Fish and Wildlife, and the real party 

interest, The Newhall Land and Farming Company. Defendant and real party in interest 

shall recover their costs incurred on appeal jointly and severally from plaintiffs: Center 

for Biological Diversity; Friends of the Santa Clara River; Santa Clarita Organization for 

Planning the Environment; Wishtoyo Foundation/Ventura Coastkeeper; and California 

Native Plant Society.

CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.