Center for Biological Diversity v. Department of Fish & Wildlife

Opinion

I. INTRODUCTION

Defendant, 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 and development plan); the adoption of the Spine flower Conservation Plan and Master Streambed Alteration Agreement (streambed alteration agreement); and issuance of two incidental take permits. We issued an opinion reversing the October 15, 2012 judgment. (Center for Biological Diversity v.

After our Supreme Court issued its opinion, the developer filed a motion regarding remand concerning the scope of our ruling, which is concurred in by the department. Plaintiffs have filed an opposition to some of the developer’s arguments. The developer and the department argue our Supreme Court’s opinion permits us to retain jurisdiction to supervise the completion of the environmental review process. The developer argues as follows in part: ‘“[T]he superior court judge who heard and decided this case (Hon. Ann I. Jones) is no longer hearing mandate petitions, and this case has been reassigned to the Hon. John A. Torribio. Although Judge Torribio decided the related cases (Friends of the Santa Clara River v. County of Los Angeles, No. B256125, and California Native Plant Society v. County of Los Angeles, No. B258090, both of which are still pending before the Supreme Court as ‘grant and holds’ ancillary to this case), Judge Torribio is not familiar with the facts of this case (this case has never been before him.) Accordingly, remand to the superior court would necessarily result in delays that are to be avoided in [California Environmental Quality Act] litigation.” In addition, the developer and the department argue that this court is intimately familiar with this case. According to the developer and the department, by retaining jurisdiction, this court’s familiarity with the case will ameliorate the potential prejudice caused by the delays to date. The developer concludes: ‘“We ask this [cjourl to reaffirm its original holding concerning the merits of the steelhead and cultural resources claims; retain jurisdiction of the greenhouse gas and unarmored threespine stickleback issues; and use [the developer’s] proposed writ as a guide for this court. . . .”

Plaintiffs argue we should not retain jurisdiction but issue a remittitur directing the trial court to decide any remaining issues. Plaintiffs argue as

According to the developer and the department, section 21168.9, subdivision (a) vests this court with the power to supervise compliance with our decision. This is because we have acted “as a result of a . . . remand from an appellate court.” (Ibid.) In addition, the developer and the department rely upon the following language in our Supreme Court’s opinion: “On remand, the Court of Appeal shall decide whether, in light of our exhaustion holding, the Native American cultural resource and steelhead smolt claims warrant reexamination on the merits. The Court of Appeal shall further decide, or remand for the superior court to decide, the parameters of the writ of mandate to be issued. (See § 21168.9.)” (Center for Biological Diversity, supra, 62 Cal.4th at p. 240.) According to the developer and the department,

B. Standard of Review and the Presence of Ambiguous Statutory Language

We are construing the effect of section 21168.9, subdivision (a) on our situation. Our Supreme Court has explained: “When construing a statute, we look first to its words, ‘ “because they generally provide the most reliable indicator of legislative intent.” [Citation.] We give the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute’s purpose [citation].’ (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 , 529-530 [ 120 Cal.Rptr.3d 531 , 246 P.3d 612 ].)” (In re Ethan C. (2012) 54 Cal.4th 610 , 627 [ 143 Cal.Rptr.3d 565 , 279 P.3d 1052 ].) According to our Supreme Court: “ ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.] ‘Only when the statute’s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.’ [Citation.]” (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at p. 530; see In re Ethan C., supra, 54 Cal.4th at p. 627.)

As noted, the developer and the department focus upon the language in section 21168.9, subdivision (a). They rely on the language that “as a result of . . . remand from an appellate court” and argue we may issue a writ of mandate. (Ibid.) As noted, section 21168.9, subdivision (a)(1) through (3) specifies potential aspects of the “court[’s]” writ of mandate. Hence, they argue, we are the “court” that has the authority to issue the writ of mandate directed at the department. We are satisfied that the term “appellate court” in our context is subject to some ambiguity. (§ 21168.9, subd. (a).) Although the term “appellate court” generally refers to the Court of Appeal or an appellate division, our Supreme Court also decides appeals. And it can be logically argued that when the Supreme Court remands an appeal as it did here, section 21168.9, subdivision (a) permits us to issue a writ of mandate. The developer and the department add to this textual analysis by adverting to the need for prompt resolution of California Environmental Quality Act litigation. (§21167.1, subd. (a) [“In all actions or proceedings brought pursuant to Sections 21167, 21168, and 21168.5, including the hearing of an action or proceeding on appeal from a decision of a lower court, all courts in which the action or proceeding is pending shall give the action or proceeding preference over all other civil actions, in the matter of setting the action or proceeding

C. Limited Legislative History Concerning Section 21168.9

Section 21168.9 was introduced as Senate Bill No. 1079 (1983-1984 Reg. Sess.) (Senate Bill No. 1079). When originally introduced on March 4, 1983, Senate Bill No. 1079 made no reference to the issue of the scope of a writ of mandate to be issued in an environmental case. Rather, when originally introduced, Senate Bill No. 1079 related to costs of suit and attorney fees in environmental litigation involving low- or moderate-income housing projects. (Sen. Bill No. 1079, as introduced Mar. 4, 1983; Sen. Com. on Housing and Urban Affairs, Rep. on Sen. Bill No. 1079, Mar. 4, 1983, p. 1.) Later, while still initially pending in the upper house, Senate Bill No. 1079 was amended to address other zoning and public planning issues and environmental matters.

On July 25, 1983, Robert K. Break of the law firm of Latham & Watkins wrote a letter to Maxine Harris Brookner. Mr. Break’s letter proposed an amendment to the California Environmental Quality Act. Mr. Break’s letter was received while Senate Bill No. 1079 was under consideration in the upper house. Ms. Brookner was a Senate Committee on Housing and Urban Affairs staffer. Mr. Break requested that legislation be adopted providing for greater flexibility when selecting remedies in the case of a California Environmental Quality Act violation. Mr. Break argued the California Environmental Quality Act should be amended to provide more focused remedies other than entirely voiding an environmental decision. Mr. Break wrote to Ms. Brookner: “[G]iven the cost associated with the delay of any public or private works project and the sensitivity of many such projects to any delay, I think it is appropriate to consider some statutory direction to the courts

On May 8, 1984, Senate Bill No. 1079, while pending in the Assembly, was amended to propose the adoption of section 21168.9. As it did later upon ultimate passage, the newly drafted Legislative Counsel’s Digest stated in part: “The act specifies procedures and requirements to challenge a determination, finding, or decision of a public agency under the act, including petitions to the court for an order of administrative mandate, as specified. [¶] This bill would require a court, if it finds, as a result of a trial, hearing, or remand from an appellate court that a determination, finding, or decision of a public agency has been made without compliance with the California Environmental Quality Act, to enter an order by the issuance of a peremptory writ of mandate including one or more specified orders specifying what action by the public agency is necessary to comply with the act. . . . [¶] . . . The bill would require the court to retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with the act. The bill would also declare that its provisions do not authorize a court to direct any public agency to exercise its discretion in any particular . . . way.” (Italics omitted.) As can be noted, in terms of the remand from an appellate court language, the Legislative Counsel’s Digest endeavors to summarize the text appearing in section 21168.9, subdivision (a). The Assembly adopted the entirely rewritten Senate Bill No. 1079 and returned it to the upper house on May 29, 1983. The Legislative Counsel’s Digest is the only document prepared while the legislation was pending in the Assembly that sheds any light on Legislature’s intentions in enacting Senate Bill No. 1079.

Only one Senate committee report discusses the language of section 21168.9, subdivision (a) after Senate Bill No. 1079 was amended in the Assembly. An unfinished business report prepared by the Senate Democratic Caucus reiterated the language concerning “remand from an appellate court” but shed no light on the subject. (Sen. Democratic Caucus, Analysis of Sen. Bill No. 1079, as amended May 8, 1984, pp. 1-2.) On June 21, 1984, the Senate unanimously refused to concur in the Assembly amendments, which in essence rewrote Senate Bill No. 1079 to propose section 21168.9. (7 Sen. J. (1983-1984 Reg. Sess.) p. 12134.) A conference committee was appointed; it recommended adoption of the Assembly amendments to Senate Bill No. 1079, which proposed enactment of section

D. Other Provisions of the California Environmental Quality Act and Appellate Practice Militate Against Holding That on Direct Appeal We May Issue a Writ of Mandate and Supervise Its Implementation.

1. Other legal provisions concerning trial court jurisdiction over California Environmental Quality Act enforcement and administrative mandate procedure

Other legal and procedural provisions are inconsistent with the legislative intent to permit an appellate court, on direct appeal, to issue a writ of mandate directly to the lead agency. First, we examine California Environmental Quality Act enforcement practice in 1984 when section 21168.9 was enacted. Since 1972, if a litigant desires to challenge an environmental impact report’s certification, the Legislature has required a Code of Civil Procedure section 1094.5 administrative mandate petition be filed. And the practice has always been to file a Code of Civil Procedure section 1094.5 administrative mandate petition in superior court. In 1970, the California Environmental Quality Act was adopted with the enactment of new sections 21000 through 21151. (Stats. 1970, ch. 1433, § 1, pp. 2780-2783.) Former section 21100, subdivision (a) required a “detailed statement by a responsible state official” be written describing a proposed action’s environmental impact. The 1970 legislation made no reference to judicial enforcement of the new environmental legislation. In 1972, sections 21060 through 21172.5 were adopted, which substantially amended the 1970 version of the California Environmental Quality Act. (Stats. 1972, ch. 1154, § 1, pp. 2271-2280.) Former section 21168 required that any action challenging a public agency’s determination under the California Environmental Quality Act must be filed in accordance with Code of Civil Procedure section 1094.5. (Stats. 1972, ch. 1154, § 15, pp. 2276, 2278.)

And any filing in a trial court would have been the superior court. In 1972, neither the municipal nor justice courts had jurisdiction to hear administrative mandate petitions. As can be noted, this language is inconsistent with the direct filing of a Code of Civil Procedure section 1094.5 administrative mandate petition in an appellate court. (As we will explain later, we do not foreclose that possibility. But our point is that the practice in 1984 when section 21168.9 was enacted was for administrative mandate petitions to be filed in the superior court.)

We now turn to the legislative events in 1984 when section 21168.9, with its “remand from an appellate court” language, was adopted. The 1984 version of Code of Civil Procedure section 1094.5, the enforcement provision for California Environmental Quality Act, continued with the references to a “court sitting without a jury”; “respondent’s points and authorities”; the entry of a judgment; and stays pending appeal. (Code Civ. Proc., former § 1094.5, subds. (a), (e), (1), (g), and (h)(3); Stats. 1982, ch. 812, § 3, pp. 3102-3105.) Code of Civil Procedure section 86 in 1984 specified the jurisdiction of the justice and municipal courts. The 1984 amended version of Code of Civil Procedure section 86 did not vest the municipal or justice courts with jurisdiction over California Environmental Quality Act litigation. Nor did the 1984 version of Code of Civil Procedure section 86 vest those courts with the authority to rule on a Code of Civil Procedure section 1094.5 administrative mandate petition. (Stats. 1984, ch. 1719, § 1.1, pp. 6229-6231.)

No statute explicitly provided for filing a mandate petition to challenge an environmental impact report certification in the Courts of Appeal. Section 21168.6 specified, as it does now, that a mandate petition “against the Public Utilities Commission” involving California Environmental Quality Act compliance must be filed in the Supreme Court. (Stats. 1972, ch. 1154, § 1, pp. 2271, 2278.) Also, in 1984, the Legislature adopted section 21167.6,

And, there is no basis for implying the Legislature intended in enacting section 21168.9 to modify the well-established procedures for appeals digested in the immediately foregoing paragraph. Stated differently, we may not imply a repeal or modification of the Code of Civil Procedure sections 43 and 912 remittitur requirements because of the enactment of section 21168.9. Repeals by implication are disfavored. (People v. Siko (1988) 45 Cal.3d 820 , 824 [ 248 Cal.Rptr. 110 , 755 P.2d 294 ] [“As a general rule of statutory construction, of course, repeal by implication is disfavored.”]; Flores v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 171 , 176 [ 113 Cal.Rptr. 217 , 520 P.2d 1033 ] [“[A]ll presumptions are against a repeal by implication.”].) Our Supreme Court has explained: “Absent an express declaration of legislative intent, we will find an implied repeal ‘only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” ’ ” (Garcia v. McCutchen (1997) 16 Cal.4th 469 , 476-477 [ 66 Cal.Rptr.2d 319 , 940 P.2d 906 ], quoting In re White (1969) 1 Cal.3d 207 , 212 [ 81 Cal.Rptr. 780 , 460 P.2d 980 ].)

This presumption against the implied repeal of Code of Civil Procedure sections 43 and 912 is of special emphasis given the historic nature of the structure of the California appellate process. In 1850, the Legislature specified the powers of the Supreme Court and the role of the remittitur: “The Supreme Court may reverse, affirm, or modify, the judgment or order appealed from, and its judgment shall be remitted as soon as practicable, after judgment pronounced, to the Court below, to be enforced according to law.” (Stats. 1850, ch. 14, § 7, p. 57; see Grogan v. Ruckle (1850) 1 Cal. 193 , 194.) Later in 1850, the Legislature enacted “AN ACT to regulate proceedings in Civil Cases in the District Court, the Superior Court of the City of San Francisco, and Supreme Court” which: reiterated the power of the Supreme Court to “reverse, affirm, or modify any judgment, order or determination, appealed from in whole or in part”; directed that the Supreme Court’s judgment or order “be remitted to the District Court”; and required, “When the judgment of the Supreme Court is remitted to the Court below, the clerk of the Supreme Court shall certify the costs of the appeal . . . .” (Stats. 1850, ch. 142, §§280, 283, pp. 428, 453.) In 1851, the Legislature once again defined the powers of the Supreme Court thusly: “This Court may reverse, affirm, or modify the judgment or order appealed from, in the respect

The Code of Civil Procedure was enacted in 1872. (See First Nat. Bank v. Kinslow (1937) 8 Cal.2d 339 , 343 [ 65 P.2d 796 ]; Hogoboom v. Superior Court (1996) 51 Cal.App.4th 653 , 660 [ 59 Cal.Rptr.2d 254 ].) As enacted in 1872, Code of Civil Procedure section 45 stated: ‘“The Court may reverse, affirm, or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceeding to be had. Its judgment must be remitted to the Court from which the appeal was taken.” (1 Ann. Code Civ. Proc., § 45 (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. 49.) In 1880, Code of Civil Procedure former section 45 was moved to section 53. The 1880 version of Code of Civil Procedure former section 45 maintained the “affirm, reverse, or modify” language and concluded, “Its judgment in appealed cases shall be remitted to the Court from which the appeal was taken.” (Code Amends. 1880, ch. 35, § 53, p. 25.) In 1933, Code of Civil Procedure former section 53 was amended to clarify that the power “to affirm, reverse, or modify” extended to the Court of Appeal. As in the case of the 1880 version, the 1933 amendment explicitly stated the judgment in an appealed case was to be remitted to the trial court. (Stats. 1933, ch. 743, § 6, p. 1807.) In 1967, Code of Civil Procedure former section 53 was renumbered as section 43 and amended to state as it does now. (Stats. 1967, ch. 17, § 5, p. 827.) Since 1850, the powers of appellate courts have been limited “to affirm, reverse, or modify” judgments or orders and the decision on appeal is to be remitted to the trial court.

Finally, the department and developer argue that we should somehow supervise compliance with any writ of mandate we can issue. Section 21168.9, subdivision (b) explains who retains jurisdiction to supervise a writ of mandate issued to enforce compliance with the California Environmental Quality Act: “The trial court shall retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division.” The Legislature has explicitly vested the trial court with the authority to retain jurisdiction to ensure the department has complied with the California Environmental Quality Act. Any suggestion we can retain jurisdiction to supervise any return to the writ of mandate is contradicted by the express language of section 21168.9, subdivision (b).

E. Conclusion

Nothing in the language of 21168.9, subdivision (a), the events leading to its adoption or other provisions of law permit us, on direct appeal,

Nothing we have said herein applies to cases where an original proceeding is initially commenced in the Court of Appeal. (Cal. Const., art. VI, § 10; see Raven v. Deukmejian (1990) 52 Cal.3d 336 , 340 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ].) No original proceeding has been filed with this court. Similarly, we are not discussing specified environmental challenges filed against the Public Utilities Commission, which are filed in our Supreme Court. (§ 21168.6.) Further, nothing we have said applies to cases where a supersedeas petition is filed and conditions are imposed which can lead to an early compliance with environmental requirements. (Cal. Rules of Court, rule 8.112(d)(1) [“The court may issue the writ on any conditions it deems just.”]; County of Inyo v. Yorty (1973) 32 Cal.App.3d 795 , 802-814 [ 108 Cal.Rptr. 377 ] [supersedeas petition deemed to be mandate petition and the Court of Appeal issued a writ of mandate ordering preparation of an environmental impact report and limiting ground water pumping].) No supersedeas petition has been filed with us. Finally, in a related supersedeas scenario, nothing we have written applies to issue of injunctions designed to preserve the status quo so as to maintain the jurisdiction of this court. (Code Civ. Proc., § 923 [“The provisions of this chapter shall not limit the power of a reviewing court or of a judge thereof to stay proceedings during the pendency of an appeal or to issue a writ of supersedeas or to suspend or modify an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo, the effectiveness of the judgment subsequently to be entered, or otherwise in aid of its jurisdiction.”]; People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533 , 537 [ 72 Cal.Rptr. 790 , 446 P.2d 790 ] [Supreme Court’s inherent powers permit it to issue an injunction in aid of its own jurisdiction and to preserve the status quo]; County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91 , 100-101 [ 132 Cal.Rptr. 167 ] [Court of Appeal uses injunctive order powers to reset an interim pumping rate from the subsurface pool of the Owens Valley Groundwater Basin].) No specific injunctive relief request has been presented to us. This is not merely a case involving an injunction but the certification of an environmental impact; approval of a streambed alteration agreement; approval of the resource management and development plan; adoption of the Spineflower Conservation Plan and streambed alteration agreement; and issuance of two incidental take permits. Our analysis is limited to the argument that, based on section 21168.9, we should issue a writ of mandate and supervise the department’s compliance therewith. Section 21168.9 does not empower us to do so.

T

he judgment is affirmed in part and reversed in part. First, the judgment is affirmed as to the finding that mitigation measures BIO-44 and BIO-46 violate Fish and Game Code section 5515. Second, the judgment is reversed as to the finding that the selection of the Health and Safety Code section 38505 greenhouse gas emission reduction goals was an abuse of discretion. Upon remittitur issuance, the trial court shall find the department could select the Health and Safety Code section 38505 greenhouse gas emissions reduction goals as a significance criterion. Third, the judgment is reversed as to the finding that the department could not use a hypothetical business as usual scenario for evaluating greenhouse gas emission impacts. Upon remittitur issuance, the trial court is to enter a finding that the department can use a hypothetical business as usual scenario for evaluating greenhouse gas emission impacts. Fourth, the judgment is affirmed as to the trial court’s ruling there is no substantial evidence the project’s greenhouse gas emissions will not result in a cumulatively significant environmental impact. Upon remittitur issuance, the trial court is to enter a finding that there is no substantial evidence the project’s greenhouse gas emissions will not result in a cumulatively significant environmental impact. Fifth, the trial court’s remaining findings concerning Native American resources, San Fernando Valley spine-flower conservation, reliance on the specific plan and steelhead smolt are reversed. Once the remittitur issues, the trial court is to issue its writ of mandate as specified in the unpublished portion of this opinion. Further, the

Kriegler, J., and Baker, J., concurred.

A petition for a rehearing was denied August 10, 2016, and the opinion was modified to read as printed above. The petition of respondent Wishtoyo Foundation/Ventura Coastkeeper for review by the Supreme Court was denied October 12, 2016, S236776.