Environmental Council of Sacramento v. City of Sacramento (Alleghany Properties, Inc.) (2006),  Cal.App.4th  
http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2006/c049527.html

Environmental Council of Sacramento (ECOS) challenged the City of Sacramento (City) and certification by Sutter County (Sutter) of the EIR and issuance of incidental take permits by Department of Fish and Game (DFG) on essentially three points: 1) agencies failed to consider the impacts that the Joint Vision Memorandum of Understanding (MOU) between the City and County of Sacramento (County) and other development projects would have on the Swainson’s hawk (hawks) and giant garter snake (snakes), 2) the mitigation measures are impermissibly unfunded, voluntary, unenforceable, and infeasible, and 3) the 0.5:1 ratio for the purchase of mitigation land is infeasible.  The Court did not find in favor of the plaintiff on any of the points.

Favorite quote from this case: “Although plaintiffs present evidence to support their point of view, they fail to ‘lay out the evidence favorable to the other side and show why it is lacking.’ (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266)  Their failure to discredit the overwhelming evidence in support of the findings relieves us of the burden of independently reviewing the record. (Ibid.)… Nevertheless, we have independently reviewed the record to make our own assessment of the sufficiency of the evidence.”

Regarding the MOU, plaintiffs 1) contended that the plaintiffs planned for more development (10,000 additional acres) than considered in the Conservation Plan and Final EIR, 2) challenged the assumption agricultural land would remain viable habitat in light of MOU-envisioned development, and 3) planners were acting in interests of development and ignoring concerns raised by wildlife agencies’ staff.  The Court indicates that the concerns are valid if raised in a political venue, but the issue is whether the agencies complied with CEQA and CESA. 

Agreeing with the defendants that the Final EIR fully disclosed the terms of the MOU as well as other potential private projects, the Court indicated that until specific measures or projects are defined, it would be speculative, wasteful and of little value to the consumers of the EIR to analyze unspecified and uncertain development that may be approved in the future.  The Court found that too little is known about the potential projects (that may exceed the 17,500 acres considered in the EIR) to assist decision makes in evaluating environmental tradeoffs.  The Court differentiates from Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th, 859, 870 and City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1338, pointing out that the Final EIR discussed the MOU at length, and disclosed what was then known about the potential for development and what was not.  The Court also noted that the Conservation Plan was designed to contain growth and enhance the survival of the species, and that the MOU did not identify any type of specific development project. 

The Court found the EIR analyzed the cumulative effects of all past, present, and reasonably foreseeable development, so the plaintiff’s idea that certification of the EIR was void because it relied on invalidated Guideline former section 15130 (b)(1)(B)(2) which limited types of future projects required to be analyzed in an EIR. 

Plaintiffs made a similar argument that DFG failed to consider potential for development recognized in the MOU, draft General Plan amendment, and discussions of the landowners.  The Court stated “Plaintiffs have cited no cases, and we have not found any, to support their counterintuitive proposition that a vague planning document that does not quality as a project under CEQA nevertheless constitutes a known threat to a species or a relate project with reasonably foreseeable impacts on hawks and snakes.  Because there is no proposed project or a pending application of an incidental take permit, the Department [DFG] would be forced to hypothesize an endless number of scenarios…We have concluded that CEQA, like CEQA does not require wasteful speculation on potential projects yet to be conceived and described…” The Court indicated that “The Conservation Plan itself stands as a flexible, but comprehensive, bulwark against those who would jeopardize the threatened species in the Natomas Basin.”

Addressing the feasibility of the mitigation measures, the Court notes that the plaintiffs premise confuses the agencies’ assumptions about the baseline conditions with necessary mitigation measures.  Citing Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, City of Del Mar v. City of San Diego (1982) 133 Cal.App3d 401, 412, and the Public Resources Code, the Court states that a public agency can make reasonable assumptions based on substantial evidence about future conditions with guaranteeing that those assumptions will remain true.  The Court concluded that there was substantial evidence to support the assumptions, and indicates (again) that plaintiffs confuse assumptions with mitigation measures.

Concerning the adequacy of the 0.5:1 mitigation ratio, plaintiffs contend that a 1:1 ratio is more generally accepted, which is the amount in the MOU for open space, and accuse the agencies of shady and hypocritical dealing by rejecting the 1:1 ratio in the Conservation Plan but accepting it in the MOU, among other things.  The Court found that the City and Sutter “fashioned an enormously comprehensive and integrated mitigation plan.  Plaintiffs parse but one component from the integrated mitigation program, ignoring the broader context, the broader findings, and the broader evidence relied on by the agencies.”  The Court proceeds to find that the mitigation plan mitigates beyond the 0.5:1 ratio, noting management of conservation land, preconstruction surveys, preservation of and avoidance of specific areas, as part of the comprehensive plan for the mitigation of incidental take. 

Identifying that the plaintiffs apparently confuse habitat loss with take, the Court notes that the ratio appears more generous that plaintiffs depict, based on the habitat value and state of the Natomas Basin.   Addressing that City and Sutter relied on outdated figures, the Court notes the Final EIR disclosed updated figures.  The Court concluded there was evidence the higher mitigation ratio would “impede regional development, transgress legal parameters, and present financial impediments to implementation of the Conservation Plan.”

In terms of the adequacy of the evidence for the CESA findings, the Court declines to arbitrate between scientists and second-guess DFG’s findings, which were based on scientific assessment and more than adequate evidence.  The findings that the Conservation Plan minimizes and fully mitigates the incidental take, does not jeopardize the hawks or snakes, and will be adequately funded were based on sufficient evidence.

One of the reasons defendants were successful is that they documented all of their assumptions and conclusions.  Evidence was provided for the cumulative buildout assumptions (what was reasonable to include, what was speculative), baseline development assumptions, and mitigation approach.

This case was discussed on Sheppard & Mullin’s real estate and construction blog.