ENVIRONMENTAL / CEQA

The California Endangered Species Act (CESA) directs the Fish and Game Commission to establish a list of endangered species, which "means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct.” In 1995, the Commission added to the list coho salmon in streams south of San Francisco. In 2004, it joined this coho population with coho from San Francisco north to Punta Gorda, and since then has included "Coho salmon ... south of Punta Gorda (Humboldt County)" in its list of endangered species. In this proceeding, plaintiffs filed a petition asking the Commission to redefine the southern boundary of [its coho listing] to exclude coastal streams south of San Francisco, effectively delisting coho salmon south of San Francisco from the register of endangered species. They asserted that, because these fish were "artificially introduced" into the area and have since been "hatchery maintained," they are not "native" within the meaning of CESA and "do not qualify for listing."

The Court granted review to determine whether an environmental impact report (EIR), issued as part of a master plan to develop a partial retirement community in Fresno, California, violated the California Environmental Quality Act (CEQA) for failing to include sufficient information on topics the act requires. The court held that under CEQA, the environmental impact report for a partial retirement community development project failed in part to provide an adequate discussion of health and safety problems that could arise from the development’s creation of various unhealthy air pollutants. The holding concluded that a more detailed and comprehensive description of adverse environmental effects was necessary in order to create better mitigation measures and project alternatives that are required to address the project’s environmental consequences.

The Department of Fish and Wildlife (DFW) and the United States Army Corps of Engineers prepared a joint environmental impact statement/environmental impact report (the EIR) for two natural resource plans related to a proposed land development to be developed over about 20 years on almost 12,000 acres of land, consisting of up to 20,885 dwelling units as well as commercial and business uses, schools, golf courses, parks and other community facilities. This case presents three issues regarding the adequacy of the environmental impact report, each issue arising under the California Environmental Quality Act (CEQA): (1) Does the environmental impact report validly determine the development would not significantly impact the environment by its discharge of greenhouse gases? (2) Are mitigation measures adopted for protection of a freshwater fish improper because they involve taking of the fish prohibited by the Fish and Game Code? (3) Were plaintiffs' comments on two other areas of disputed impact submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177?