The Dirt -- Fall 2006
In this issue:
Editor’s Letter
While Morrison & Foerster LLP has long been at the forefront of cutting-edge environmental issues, it is the firm’s ability
to identify and analyze problems and possibilities for its clients and friends that sets it apart. Rather than merely provide
dry legal analysis without real world context and application, we strive to give a practical assessment of how a new law or
case or rule will affect your day-to-day operations.
An example is a recent seminar on AB 32, the California Global Warming Solutions Act of 2006, held by the Land Use and Environmental
Law Group. Presented by the firm’s own Michèle Corash, with Andrea Russell of Rio Tinto Minerals and Joel Levin of the California
Climate Action Registry, the seminar provided three different and complementary perspectives on the opportunities and obstacles
for the regulated community in responding to the emergence of the new legal regime. If you are interested in receiving a copy
of the seminar materials or being on the mailing list for future events, please contact Judy Burgin at JBurgin@mofo.com.
This issue of The Dirt continues the dialogue on this rapidly evolving area with an article on how (and if) a European-style emissions market could
be applied in California. We also provide articles on two important recent victories for our clients, one decision upholding
the habitat conservation plan in California’s Natamos Basin and another decision dismissing an “anti-SLAPP” motion by a private
environmental enforcer. Another article addresses the ongoing debate over whether citizen-sponsored referendum and initiative
petitions need to comply with the Voting Rights Act. Next, we offer an analysis of a new case that may affect the relationship
between development moratoria and vested subdivision maps. We also provide a discussion of the recent dismissal of an Unfair
Competition Law action against several windpower operators based on the public’s “ownership” of birds. Finally, the California
Department of Fish and Game provides a response to our article in the last issue on consistency determinations under the California
Endangered Species Act—to which we respond as well.
Thank you for the many compliments on the inaugural issue of The Dirt. We hope this issue continues to meet your high expectations for up-to-date and practical information you can use. Please
feel free to contact us with any comments or suggestions for future issues or articles.
P.S. – If you did not receive The Dirt by e-mail and would like to, please email Judy Burgin at JBurgin@mofo.com.
New Climate Change Law – Kyoto in California?
By Bill Sloan
The signing ceremony for California’s new climate change law—the Global Warming Solutions Act of 2006 (AB 32)—included a satellite
feed of British Prime Minister Tony Blair heralding the achievement. The European interest in California’s new law, however,
runs deeper than just a shared environmental vision. For approximately two years now, Europe has been experimenting with carbon
emission trading. This market-based mechanism at the core of the Kyoto Protocol is intended to help countries achieve their
respective greenhouse gas emission targets. With passage of AB 32, California, the world’s fifth‑largest economy, is now contemplating
whether to develop its own carbon trading market in the state. If that happens, the primary question on almost everyone’s
mind will be whether California should link its market with the existing European program. While the enthusiasm for such a
link is strong, a number of problems should be addressed before California and Europe consummate such an arrangement.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02290.html
Courts Uphold The Natomas Basin Habitat Conservation Program, Providing Important Guidance for Future Planning In California
By Andrew Sabey and Chad Hales
More than a decade’s worth of habitat conservation planning in the Natomas Basin (Sacramento) was recently put under the judicial
microscope in both state and federal courts in California. At issue in the two cases (Environmental Council of Sacramento v. City of Sacramento and National Wildlife Federation v. Norton) was whether the Natomas Basin Habitat Conservation Plan (“NBHCP”)—a multi-species, long-term, regional conservation program
developed by the City of Sacramento and Sutter County, in consultation with the California Department of Fish & Game and the
United States Fish & Wildlife Service (“FWS”)—complied with the Federal Endangered Species Act (“ESA”), the California ESA
(“CESA”), and the California Environmental Quality Act (“CEQA”).
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02291.html
Trade Group's Declaratory Relief Action Against Private Enforcer Found Not to be a "Slapp" Suit
By Bill Tarantino
California’s anti-Strategic Lawsuit Against Public Participation (“SLAPP”) law was designed to protect citizens from being
harassed for exercising their rights to petition the government. Under the law, if a cause of action against him or her “arises
out of” constitutionally protected conduct, that suit will be considered a SLAPP and subject to a special motion to strike,
unless the party bringing the lawsuit can show a probability of prevailing. The classic SLAPP suit is brought “not to vindicate
a legal right, but rather to interfere with the defendant’s ability to pursue his or her interests.”
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02292.html
Applicability of Voting Rights Act to Initiatives and Referenda Remains Uncertain Following Ninth Circuit Decision
By John Doorlay
A eagerly anticipated recent decision by the Ninth Circuit Court of Appeals failed to clear up uncertainty over whether the
minority language requirements of the federal Voting Rights Act apply to citizen-sponsored initiatives and referenda in California.
The court’s en banc decision in Padilla v. Lever held that the Act’s minority language provisions do not apply to recall petitions, but did not address initiative and referendum
petitions. It remains uncertain, therefore, whether the Act requires initiative and referendum proponents in jurisdictions
subject to it to translate their petitions into minority languages.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02293.html
When Does a Moratorium Become a Mortuary? The Death of a Vesting Tentative Map Under Ailanto Properties, Inc. v. City of Half Moon Bay
By Rob Hodil
California’s First District Court of Appeal recently provided clarification regarding the life of tentative subdivision maps
under California’s Subdivision Map Act.
The case, Ailanto Properties, Inc. v. City of Half Moon Bay, involved a vesting tentative map for a residential project in the City of Half Moon Bay that was subjected to significant
delays as a result of the City’s water and sewer moratoria. The court refused to extend the life of the vesting tentative
map to account for the total actual time of the moratoria. In reaching its decision, the court addressed two issues: (1) how
long the life of a tentative map may be extended when a city or county has a development moratorium in effect; and (2) when
filing a final map prevents a tentative map from expiring.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02294.html
Court Dismisses "Altamont" Case, Rejecting Claims Based on Public's "Ownership" of Birds
By Anne Mudge and Shaye Diveley
A closely watched and controversial lawsuit involving several wind operators in California’s Altamont Pass ended with dismissal
of the case last month.
The plaintiffs in Center for Biological Diversity v. FPL Group, Inc. sued a group of wind operators in 2004 under two novel theories – that the wind companies are illegally profiting from killing
birds in violation of California’s Unfair Competition Law (“UCL”), and that, in killing them, the companies are also violating
an alleged “public trust interest” in birds. These legal claims were troubling for the wind industry. To date, wind companies
have had only limited legal exposure under wildlife protection laws such as the Migratory Bird Treaty Act (“MBTA”) and the
Bald and Golden Eagle Protection Act (“BGEPA”) because they do not authorize citizen suits—meaning they can only be enforced
by the federal government. For the most part, the Justice Department has declined to prosecute wind companies under the Acts.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02295.html
Letters to The Dirt
DFG Responds Regarding Consistency Determinations
The Dirt received a letter dated August 7, 2006, from Ann Malcolm, General Counsel of the California Department of Fish and Game (“DFG”),
responding to our article in the Summer 2006 issue about consistency determinations under the California Endangered Species
Act. We reproduce below, for the benefit of The Dirt readers, Ms. Malcolm’s letter. Our response follows.
Dear The Dirt:
I am writing in regard to your July 2006 legal update entitled “Consistency Determinations Under the California Endangered
Species Act Streamline Permitting Process,” available at http://www.mofo.com/news/updates/files/update02225.html. The article states that a person submitting a notice pursuant to section 2080.1 of the Fish and Game Code “is allowed to
commence activities immediately after submitting these documents” to the Department of Fish and Game (DFG). This view is repeated
a second time towards the end of the article. After the article was brought to our attention, we found the same legal interpretation
in an earlier article, “Court Decides ‘Consistency Determinations’ Under the California Endangered Species Act Are Not Subject
to CEQA Review,” dated November 2005 and available at http://www.mofo.com/news/updates/files/update02091.html.
These statements conflict with other provisions in CESA and could, I fear, encourage activities that would amount to a criminal
violation of the California Endangered Species Act (CESA). The interpretation would appear to be based on the language in
subdivision (a) of section 2080.1 that says no further authorization or approval for take of listed species is required under
CESA if a person notifies DFG that a federal authorization has been obtained and provides a copy of the federal document to
DFG. But subdivision (a) cannot be read in isolation. Subdivision (c) clearly modifies the language in subdivision (a) by
requiring that the taking of a listed species “may only be authorized pursuant to this chapter” – i.e. through one of CESA’s
permitting mechanisms – if DFG determines that the federal permit or federal incidental take statement is not consistent with
CESA. In other words, more is required under section 2080.1 to take listed species than merely submitting a notice and copy
of the federal authorization: the law also requires a determination from DFG’s director that the federal authorization is
consistent with CESA before take can lawfully occur.
It is true that a bill analysis prepared for the Assembly Appropriations Committee took a view similar to your own, stating
that Assembly Bill 21 (1997), which added section 2080.1, would allow a person to incidentally take species listed under both
the state and federal endangered species acts immediately after providing the specified notice to DFG. To the degree legislative
history might be relevant to this issue, the Assembly Appropriations Committee analysis is not persuasive, especially since
none of the other four legislative analyses prepared for AB 21, including the analyses prepared for the full Assembly and
Senate, describe the statute as allowing take prior to a finding of consistency by DFG. Indeed, the other bill analyses, among
them those prepared by the policy committees most familiar with CESA, contain language to the opposite effect. Bill reports
prepared in advance of Assembly and Senate floor votes both describe the bill as allowing “the director to apply CESA regulations
if it is determined that the federal take permit is not consistent with the California law.” This, of course, is only possible
if the incidental take has not already occurred under sanction of the statute. The Assembly report also states that “an individual
need only obtain a federal take permit so long as the director of the Department of Fish and Game (DFG) determines that the
federal permit is consistent with California law,” and the Senate Rules Committee’s one-sentence digest about the bill said
it would authorize “the Director of the Department of Fish and Game under specified circumstances to waive requirements for
state incidental take permits for plant and animal species that have been jointly-listed by the state and federal government. . .”.
These all indicate that the exemption from CESA’s permitting requirement is dependent on DFG determining that the project
qualifies for the exemption, and not merely on a person submitting information to DFG.
Finally, I would point out that to interpret the statute in a way that gives all persons holding a federal take permit or
biological opinion the right to take species for several weeks while DFG considers the federal document’s consistency with
CESA would create a gaping hole in CESA’s protections without any clear evidence that the Legislature intended such a result.
Many properties on which development projects are planned could be stripped of all habitat and wildlife within a few weeks,
obviating the need for a consistency determination or a state incidental take permit and frustrating the Legislature’s clear intent that projects proceeding under the exemption
in section 2080.1 still meet CESA’s permitting standard of take minimization and full mitigation.
The longer the article goes uncorrected, the more likely a client of your firm or another member of the public might prematurely
launch activities that could expose the person to a CESA enforcement action. I therefore request you promptly revise the two
on-line articles and take appropriate action to inform any readers who received the articles by mail or email about DFG’s
interpretation of this section.
I appreciate your attention to this important matter. If you have questions, please contact Deputy General Counsel Stephen
Adams at (916) 654-5295 or sadams@dfg.ca.gov.
Sincerely,
Ann S. Malcolm
General Counsel, California Department of Fish and Game
The Dirt:
Because the Department of Fish and Game administers the California Endangered Species Act and is responsible for consistency determinations, we bring Ms. Malcolm’s letter to
the attention of the readers of The Dirt.
In “Consistency Determinations Under the California Endangered Species Act Streamline Permitting Process” (The Dirt, Summer 2006), we explained that “[u]nder California Fish and Game Code section 2080.1, the applicant is allowed to commence
activities immediately after submitting” certain documents required by the statute. Section 2080.1(a) provides:
Notwithstanding any other provision of this chapter, or Chapter 10 (commencing with Section 1900) or Chapter 11 (commencing
with Section 1925) of Division 2, but subject to subdivision (c), if any person obtains from the Secretary of the Interior
or the Secretary of Commerce an incidental take statement pursuant to Section 1536 of Title 16 of the United States Code or
an incidental take permit pursuant to Section 1539 of Title 16 of the United States Code that authorizes the taking of an
endangered species or a threatened species that is listed pursuant to Section 1533 of Title 16 of the United States Code and
that is an endangered species, threatened species, or a candidate species pursuant to this chapter, no further authorization
or approval is necessary under this chapter for that person to take that endangered species, threatened species, or candidate
species identified in, and in accordance with, the incidental take statement or incidental take permit, if that person does both of the following:
(1) Notifies the director in writing that the person has received an incidental take statement or an incidental take permit
issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C.A. Sec. 1531 et seq.).
(2) Includes in the notice to the director a copy of the incidental take statement or incidental take permit.
Cal. Fish & Game Code § 2080.1(a).
As explained by an analysis prepared by the Assembly Committee on Appropriations, the statute provides that “[i]mmediately
after providing this information to the director, the individual is allowed to start incidentally taking the species.” Cal.
Assembly Comm. on Appropriations, Analysis of A.B. 21 at 1 (May 13, 1997). The analysis recognized that this could mean a
permittee may start operations that the agency may later find inconsistent with the California Endangered Species Act:
Since the “incidental take” can begin immediately upon providing the director with the required information, takes can occur
before the director has a chance to review the information and determine whether or not it is consistent with CESA policy.
If, in a particular case, the director eventually decides the federal permit is not consistent with CESA policy, a “stop order”
could be issued after members of the species have already been taken. Id. at 2. The analysis recommended that the bill be amended so that no take can “take place until the director has made a determination
that the information provided is consistent with CESA policy.” Id. However, no such amendment was made before the bill was chaptered and became section 2080.1.
This interpretation is also consistent with the non-discretionary nature of consistency determinations. As explained by the
Sacramento County Superior Court in Center for Biological Diversity v. California Department of Fish & Game (Sacramento Superior Court Case No. 05CS01166), “the issuance of a consistency determination is not a discretionary project”
for the purposes of CEQA, but instead a ministerial act. As a result, so long as the informational requirements of section
2080.1 are satisfied, a consistency determination must issue. This strongly supports the interpretation that operations may
commence once these conditions are fulfilled.
All this being said, Ms. Malcolm’s interpretation of the statute should be given appropriate consideration. As it appears
to reflect DFG’s considered opinion regarding the requirements of section 2080.1, it presumably would inform DFG’s evaluation
of whether a party is in compliance with those requirements. We believe those instances will be rare in which it will be important
to an applicant to commence activities prior to the expiration of the 30-day period section 2080.1(c) provides DFG to make
a consistency determination. Moreover, we are confident, in light of the issues raised by our exchange with Ms. Malcolm, that
in such instances DFG will be especially cognizant of the timing needs of applicants and work diligently to accommodate them.
We are pleased to note that Ms. Malcolm does not take issue with the primary focus and conclusion of our article—that consistency
determinations are a valuable regulatory tool for streamlining the permitting process.
We welcome further commentary on this issue, as well as on any other topic discussed (or topics that you believe should be
discussed) in The Dirt.
Thank you,
Chris Carr and Shaye Diveley
The Dirt on Upcoming Events
Sacramento
January 4, 2007
404 Permitting Issues – Identifying the LEDPA, CLE 13th Annual Conference on California Wetlands – Rapanos, Carabell and Beyond
Clark Morrison, Presenter
Los Angeles
January 19, 2007
CEQA Update, UCLA Extensions Annual Land Use & Policy Conference
Michael Zischke, Presenter
San Francisco
March 29-30, 2007
Third Annual NEPA Conference
Alicia Guerra, Presenter
