The California Supreme Court has interpreted the California Endangered Species Act (“CESA”) to require landowners and businesses to mitigate the impacts of their activities on endangered species to a greater degree and in different ways than required under the federal Endangered Species Act. Those seeking federal and state permits for activities affecting species listed under both the federal and state acts, thus, will find the task more complicated.

In deciding Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection on July 17, 2008, the Court invalidated an “incidental take permit” issued by the California Department of Fish and Game (“CDFG”) for the taking of endangered species incidental to timber harvesting activities because the permit included “no surprises” assurances to Pacific Lumber Company, agreeing not to call for additional or different mitigation during the 50-year term of the permit in the event of “unforeseen circumstances” or certain foreseeable “changed circumstances.” These assurances, the Court said, contravened the state act’s requirement that the impacts of an authorized take must be “fully mitigated.”
Responding to the CDFG’s argument that the act expressly limits mitigation measures to those that are “roughly proportional” to the impact on endangered species and, where various measures are available, those that “maintain the applicant’s objectives to the greatest extent possible,” the Court ruled that these provisions do not diminish the obligation to “fully mitigate” impacts, rather they mean that “the landowner is only required to mitigate its own impacts on the species” and “when that obligation can be met in several ways, the way most consistent with the landowner’s objectives should be chosen.”

The Court suggested that permit holders may sometimes be required to mitigate the impacts of future fires, floods, and such. At one point, the Court said: “To be sure, there is no obligation for a permit holder to mitigate the impacts of the natural disasters themselves when it did not contribute to them. But when these impacts are exacerbated by the permit holder’s own subsequent purposeful activities, then [the act] mandates the full mitigation of the impacts of a take, guided by the principle of rough proportionality.” At another, it added that such events may be rare, “but if Pacific Lumber’s timber operations contribute to cause such events to occur more frequently, or if the events themselves change conditions in such a way as to necessitate additional mitigation measures, there is no reason under [the act] that additional measures cannot be required.”

The Court rejected EPIC’s further argument that the CDFG also violated a “public trust” obligation to protect natural resources. The Court recognized two distinct public trust doctrines. The first is a “common law” doctrine developed by the courts concerning the government’s duty to protect certain water resources for the public, and the second is a statutory provision establishing that “fish and wildlife resources are held in trust for the people of the state by and through the [CDFG].” Noting that the two may overlap, the Court ruled that “[n]onetheless the duty of government agencies to protect wildlife is primarily statutory [and g]enerally speaking, therefore, we will look to the statutes protecting wildlife to determine if DFG or another government agency has breached its duties in this regard.”

Complications arising from the Court’s decision are several. First, the federal Endangered Species Act authorizes “no surprises” assurances, and indeed the U.S Fish and Wildlife Service issued a federal incidental take permit to Pacific Lumber containing the same assurances the Court found inconsistent with the California act. Landowners and businesses, thus, now confront different demands and restrictions under the two acts.
Second, California too authorizes “no surprises” assurances, as the Court acknowledges, only it does so in the Natural Community Conservation Planning Act rather than the California Endangered Species Act. The CDFG argued that the Court should read the two statutes together in recognizing that it has the authority to provide such assurances. The Court, though, read the two statutes as providing distinct “alternative” schemes for addressing impacts on endangered species. It can be expected that the Court’s decision will renew interest in using the Natural Community Conservation Planning Act for certain types of projects and activities, notwithstanding the cumbersomeness of the NCCP process.

Third, the Court’s decision may diminish opportunities to streamline the incidental take permit process under the California Endangered Species Act. The state act provides that anyone who has obtained incidental take authorization under the federal Endangered Species Act for a species that also is listed under the state act may provide a copy of the authorization to the CDFG, in which case no further authorization under the state act is necessary unless the CDFG determines within 30 days that the federal authorization is “not consistent” with the state act. The Court’s interpretation of the state act to sometimes call for mitigation differing in some respects from that required under the federal act appears to increase the prospect that the CDFG will find a federal incidental take authorization not consistent with the state act.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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