CALIFORNIA FARM BUREAU FEDERATION v. CALIFORNIA WILDLIFE CONSERVATION BOARD

Filed 9/21/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

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Story continue from Part I ...

Based on the amendment of section 15313 and these statements indicating the revisions did not change, but clarified, the existing language, the State Agencies argue the acquisition of the conservation easement falls within the Class 13 exemption even if the property is in other than a natural condition, i.e., it is farmland.^[1] We agree the clarifying revisions and the normal “last antecedent rule” of construction^[2] make clear that, even before the 2004 amendment when WCB filed the notice of exemption, land did not necessarily have to be in its natural condition to qualify for a Class 13 exemption. We disagree, however, with the State Agencies’ argument that section 15313 applies to the acquisition of land for conversion to wetlands, which conversion requires active construction and ongoing maintenance, such as the project defined by the State Agencies here.

Section 15313 provides three examples of acquisitions for conservation purposes that will qualify for categorical exemption under Class 13. The first example is an acquisition for the “preservation of fish and wildlife habitat.” Webster’s Third New International Dictionary (p. 1794) defines the verb to “preserve” variously as “to keep safe from injury, harm, or destruction[,]” “to protect, save” or “to keep alive, intact, in existence, or from decay[.]” These definitions connote, as the County suggests, “the safe keeping of an existing condition.” For this first example in section 15313, that existing condition need not be land in its original “natural” condition, but it must be existing habitat. The language simply does not stretch to cover acquisitions for the purpose of physically constructing or creating and actively managing new wildlife habitat.

The State Agencies do not suggest this project falls within either of the other two listed examples of acquisitions covered by Class 13. The State Agencies do argue “the term ‘including’ indicates that there may be other circumstances, not specifically spelled out, when acquisition of land for fish and wildlife conservation purposes is exempt.” Both the Initial and Final Statement of Reasons for the 2004 amendments to section 15313 by the Resources Agency describe the three acquisitions listed in section 15313 as “examples,” suggesting the section is not intended to be limited to the three described acquisitions. However, even assuming other acquisitions for wildlife conservation purposes could be covered by the Class 13 categorical exemption, such acquisitions would still have to be similar in kind to the listed examples.

We turn to the related maxims noscitur a sociis and ejusdem generis to divine the regulatory intent behind section 15313. Noscitur a sociis (literally, “it is known from its associates”) means that a word may be defined by its accompanying words and phrases, since “ordinarily the coupling of words denotes an intention that they should be understood in the same general sense.” (2A Sutherland, Statutory Construction (6th ed. 2000) § 47.16, pp. 268-269, fn. omitted.) Ejusdem generis (literally, “of the same kind”) (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160 & fn. 7; Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47, 57, fn. 11), means that where general words follow specific words, or specific words follow general words in a statutory enumeration, the general words are construed to embrace only things similar in nature to those enumerated by the specific words. (2A Sutherland, Statutory Construction, supra, § 47.17, pp. 272-282, fns. omitted.)

Here we have already discussed the first example given in section 15313, which covers “preservation of fish and wildlife habitat.” Even though the State Agencies do not claim the project falls within the purview of the two other examples, these examples are helpful to understand the scope of the section 15313 exemption. The second example is the acquisition of lands for the purpose of “establishing ecological reserves under Fish and Game Code Section 1580[.]” Fish and Game Code section 1580 provides for the protection of “threatened or endangered native plants, wildlife, or aquatic organisms or specialized habitat types, both terrestrial and nonmarine aquatic, or large heterogeneous nature gene pools for the future use of mankind through the establishment of ecological reserves.” To establish such reserves, the statute authorizes the DFG to acquire land and nonmarine water, by a variety of methods, “suitable” for that purpose. This statute too appears to contemplate the acquisition of existing habitat or land already in a condition to provide habitat. Nothing in the language of the statute suggests land may be acquired for the purpose of making it suitable for an ecological reserve. The third example given in section 15313 is even more restrictive; acquisition is limited to “preserving access to public lands and waters where the purpose of the acquisition is to preserve the land in its natural condition.” (Italics added.) These examples narrow the construction that should be given the language “for fish and wildlife conservation purposes” in section 15313 to the acquisition of land already in a natural condition or providing existing habitat or ready to provide habitat.

The evidence in the record regarding the Traynham Ranch shows the property has been actively farmed, growing row crops, rice and most recently Sudan grass. It is not existing wetland habitat. The purpose of the acquisition is to convert the property into a habitat, not to preserve a natural condition or existing habitat. There is no evidence in the record that the property will provide wildlife habitat without the construction and active management contemplated by the management plan.^[3] We do not view the evidence that waterfowl and shorebirds already occasionally feed in the winter on the thousands of acres of rice fields in the area as substantial evidence the property itself is existing habitat so as to come within the Class 13 exemption.

The State Agencies have not met their burden to show by substantial evidence the project comes within the Class 13 categorical exemption. The WCB abused its discretion in finding this project exempt under the Class 13 categorical exemption.

C. Class 4 Categorical Exemption

In briefing the merits of the CEQA issues before the trial court, and now again on appeal, the State Agencies assert that the improvements required by the management plan for the conservation easement on the property were exempt under the Guidelines’ Class 4 categorical exemption. (Guidelines, § 15304.) Farm Bureau complains this exemption was not identified in the notice of exemption filed by the WCB after approval of the project. However, it is clear a notice of exemption is not mandatory and its only effect when filed is to start the statute of limitations running. (Guidelines, §§ 15002, subd. (k)(1), 15062; see Apartment Assn. of Greater Los Angeles v. City of Los Angeles, supra, 90 Cal.App.4th at p. 1171; Remy, CEQA Guide, pp. 84-87.) Therefore, the fact the WCB listed the project as exempt only under Class 13 and not Class 4 would not necessarily preclude the WCB from defending its exemption determination by asserting other categorical exemptions, at least where there is no claim or showing of prejudice. (Compare McQueen v. Bd. of Directors of the Mid-Peninsula Regional Open Space District (1988) 202 Cal.App.3d 1136, 1143-1147, [notice of exemption improperly used, incomplete and misleading] (McQueen), disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, with Centinela Hosp. Assoc. v. City of Inglewood (1990) 225 Cal.App.3d 1586, 1600-1601 [notice of exemption with inaccurate project description upheld].)

The County complains the State Agencies’ combination of two separate categorical exemptions to cover the project is an improper segmentation of the project. The CEQA Guidelines define a “‘project’” to mean “the whole of an action[.]” (Guidelines, § 15378, subd. (a).) It would be improper for an agency to divide a project into separate parts to avoid CEQA review. (McQueen, supra, 202 Cal.App.3d at pp. 1143-1144.) However, where the agency considers the project as a whole and determines the combined effect of two exemptions places the entire project outside the scope of CEQA, no improper segmentation has occurred. (See Surfrider Foundation v. Cal. Coastal Comm’n (1994) 26 Cal.App.4th 151, 155-156 [combination of statutory and categorical exemption placed project outside purview of CEQA].)

The problem here is the acquisition of the land does not fall within the Class 13 categorical exemption identified by the State Agencies and the construction work identified in the management plan for this project, further identified by the work plan submitted by CWA, does not fit within the Class 4 categorical exemption for minor alternations to land.

“Class 4 consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes.” (Guidelines, § 15304.) Examples given by section 15304 include, but are not limited to, (a) grading on land with a slope of less than 10 percent, (b) new gardening or landscaping, including the replacement of existing conventional landscaping with water efficient or fire resistant landscaping, (c) filling of earth into previously excavated land with material compatible with the natural features of the site, (d) minor alternations in land, water, and vegetation on existing officially designated wildlife management areas or fish production facilities which result in improvement of habitat or greater fish production, (e) minor temporary use of land having negligible or no permanent effect on the environment, such as carnivals or Christmas tree sales, (f) minor trenching and backfilling where the surface is restored, (g) maintenance dredging where the spoil is deposited in an authorized spoil area, (h) the creation of bicycle lanes on existing rights-of-way, and (i) fuel management activities within a certain distance of structures to reduce the volume of flammable vegetation meeting with some limitations. (§ 15304.)

The State Agencies claim the proposed improvements to the property here “easily fall within the definition of ‘minor alterations to land.’” The State Agencies suggest the alterations are consistent with the type of minor alterations to improve habitat described in subdivision (d) of section 15304. We disagree. First, subdivision (d) of section 15304 covers minor alterations to improve habitat “on existing . . . designated wildlife management areas or fish production facilities.” The property here is not an existing wildlife management area or fish production facility. Second, the language of subdivision (d) reasonably suggests the kinds of activities exempted are those minor alterations which improve existing wildlife habitat, not the creation of habitat. Finally, and most fundamentally, the Class 4 exemption applies to only “minor” alterations, which this project is not. The management plan calls for, among other things, a change in both the height and slope of existing levees, the construction of new permanent interior levees to replace small rice dikes, the construction of 30- to 80-foot wide and 1- to 2-foot deep swales or channels meandering throughout the property, the digging of ponds of up to 3 feet in depth in addition to the swales, the construction of 20- to 60-foot long and 10- to 30-foot wide loafing bars, plus some higher mounds for duck blinds, the construction of a catch basin, using the excavation spoil to construct what will become underwater berms and hummocks, the installation of 1,500 feet of pipeline plus a number of flashboard risers, and the planting of new riparian vegetation including trees. The work will result in 15 acres of new semi-permanent ponds, which will require regular management and maintenance. The work will clearly alter existing drainage patterns and elevations of the land. It will change the nature of the land from level fields to wetlands. This is not a “minor” physical alteration to the land as exemplified by the kinds of examples listed in section 15304. “Exemption categories are not to be expanded beyond the reasonable scope of their statutory language.” (Mt. Lion Foundation, supra, 16 Cal.4th at p. 125; see Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 842; see Myers v. Bd. of Supervisors (1976) 58 Cal.App.3d 413, 425.)

The State Agencies have not met their burden to show this project falls within the Class 4 categorical exemption.

D. Class 25 Categorical Exemption

In a footnote in their opening brief in the section discussing the Class 13 categorical exemption, the State Agencies assert, without substantive analysis or supporting citations to the record and authorities, the project is also exempt under the Class 25 categorical exemption (Guidelines, § 15325). We may disregard arguments not properly presented under appropriate headings as required under rule 14(a)(1) of the California Rules of Court (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17) and may treat as forfeited arguments merely asserted without support. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) However, even if we were to reach this issue, we would conclude this project is not categorically exempt under Class 25.

Guidelines, section 15325 provides a categorical exemption for “Transfers of Ownership in Land to Preserve Existing Natural Conditions and Historical Resources[.]” Section 15325 states: “Class 25 consists of the transfers of ownership interests in land in order to preserve open space, habitat, or historical resources. Examples include but are not limited to:

“(a) Acquisition, sale or other transfer of areas to preserve the existing natural conditions, including plant or animal habitats.

“(b) Acquisition, sale or other transfer of areas to allow continued agricultural use of the areas.

“(c) Acquisition, sale, or other transfer to allow restoration of natural conditions, including plant or animal habitats.

“(d) Acquisition, sale, or other transfer to prevent encroachment of development into flood plains.

“(e) Acquisition, sale, or other transfer to preserve historical resources.

“(f) Acquisition, sale, or other transfer to preserve open space or lands for park purposes.” (Italics added.)

Section 15325 by its terms covers only acquisitions, sales or other transfers of ownership interests for particular purposes. It does not cover anything else. Therefore, even if we were to decide that the acquisition of the property in this case could be covered by section 15325, which we do not, the exemption would not cover the project as defined by the State Agencies with its management plan component requiring significant construction.

The State Agencies have not met their burden to show the project in this case was categorically exempt under Guidelines section 15325.

E. The Common Sense Exemption

Even though the State Agencies have failed to bring the project within the scope of any statutory or specific categorical exemption, the project may nevertheless be exempt from CEQA if “‘it can be seen with certainty’ that [the] project will not have a significant effect on the environment. [Citations.]” (Mountain Lion Foundation, supra, 16 Cal.4th at p. 113.) In the language of the Guidelines’ common sense exemption: “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” (Guidelines, § 15061, subd. (b)(3), italics added; see No Oil, supra, 13 Cal.3d at p. 74 [discretionary activity having no possibility of causing significant effect not subject to CEQA].) If, however, there is a reasonable possibility that a proposed project will have a significant effect upon the environment, then the lead agency must conduct an initial study. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 206; Pistoresi v. City of Madera (1982) 138 Cal.App.3d 284, 285.)

A remote or outlandish possibility of an environmental impact will not remove a project from the common sense exemption, but if legitimate, reasonable questions can be raised about whether the project might have a significant impact, the agency cannot find with certainty the project is exempt. (Davidon Homes, supra, 54 Cal.App.4th at pp. 117-118.) The common sense exemption is “reserved for those ‘obviously exempt’ projects, ‘where its absolute and precise language clearly applies.’” (Id. at p. 117, quoting Myers v. Bd. of Supervisors, supra, 58 Cal.App.3d 413, 425.) The lead agency has the burden to show the project comes within the common sense exemption. (Davidon Homes, supra, at p. 116.)

In this case, the State Agencies claim the project will not have adverse environmental effects. The State Agencies strenuously argue a mere change in use of land from agriculture to wildlife habitat is not of itself an adverse environmental impact under CEQA, but has only a potential socio-economic impact, which cannot be considered by itself to be a significant effect on the environment bringing the project within CEQA. The State Agencies claim appendix G to the Guidelines, which provides an optional method of considering whether impacts to agricultural resources are significant environment effects, does not require a conclusion that a change in land use from agriculture to habitat is an environmental impact, that wetlands would be an “open-space” use consistent with the Williamson Act, that any conflict with the County general plan designation or zoning ordinance is a land use issue, but not “necessarily” a CEQA issue, and that case law does not support a conclusion that a restoration of agricultural land to habitat is an adverse impact. Describing the environmental benefits of changing the use of agricultural land to habitat, the State Agencies contend this project does not cause a significant adverse effect on the environment.

These arguments are premised on an underlying factual assumption that this project involves merely a change in the use of the property from agriculture to habitat. In fact, this project is not a mere passive change in use, a cessation of farming on the property. This project involves the physical reshaping of the land to create wetlands and uplands for habitat. Preliminary work, done prior to the issuance of the preliminary injunction by the trial court, required the use of heavy earth moving equipment, including a “ripper” and “scrapers.” Levees, ditches, swales, loafing bars, and other features are to be constructed under the management plan. The existing drainage pattern will be altered, raising questions of possible resulting effects on neighboring property.^[4] An existing pump is to be refurbished, 1,500 feet of new pipeline is to be laid, and flashboard risers are to be installed to provide and control water necessary for the habitat, in particular the semi-permanent brood ponds. This raises legitimate questions regarding the amount and source of the water being used. New areas of standing water will be created in the form of the brood ponds, providing not only avian breeding grounds, but also new mosquito breeding habitat, raising legitimate health concerns. The increase in birdlife will also presumably attract other wildlife, including predators. Plus, the management plan calls for the planting of new riparian vegetation, including grasses and trees. Some of this vegetation may potentially spread to neighboring properties, potentially resulting in an increased use of herbicides or pesticides on neighboring properties.

The State Agencies dismiss these concerns as unsupported by the evidence. However, a party challenging what is essentially a claim of the common sense exemption under Guidelines section 15061, subdivision (b)(3), unlike a party asserting an exception to a categorical exemption, need only make a “slight” showing of a reasonable possibility of a significant environmental impact. (Davidon Homes, supra, 54 Cal.App.4th at p. 117.) It is the lead agency that has the burden of establishing the common sense exemption, i.e., that there is no possibility the project may cause significant environmental impacts. “[T]he agency’s exemption determination must be supported by evidence in the record demonstrating that the agency considered possible environmental impacts in reaching its decision.” (Id. at p. 117; see East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist., supra, 210 Cal.App.3d at p. 171.)

Here the administrative record reflects the DFG and the WCB consistently took the position the loss of agricultural land was not itself an adverse environmental impact, but the State Agencies do not point us to any evidence in the record showing they considered the potential environmental impacts from the management plan and the construction and maintenance of this new habitat. “[I]t cannot be assumed that activities intended to protect or preserve the environment are immune from environmental review. [Citations.]” (Davidon Homes, supra, 54 Cal.App.4th at p. 119; see, e.g., Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, disapproved on other grounds in Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th 559, 570.) There may be environmental costs to an environmentally beneficial project, which must be considered and assessed. The State Agencies have not adequately shown there is “no possibility” this project, considered as a whole (Guidelines, § 15378, subd. (a)), may cause significant environmental impacts. Therefore, we do not need to reach the issue of whether a change in use of land from agriculture to habitat will itself otherwise trigger CEQA.

To be continue as Part III ...

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.

^[1] The State Agencies also argue several responses of the Resources Agency to comments by the California Department of Food and Agriculture and the California Farm Bureau Federation on the proposed amendments to section 15313 support its construction of section 15313. However, such responses indicate the purpose of the amendment to section 15313 was limited to clarification only and was not meant to address larger questions of CEQA’s applicability to agricultural land.

^[2] “‘A longstanding rule of statutory construction--the “last antecedent rule”--provides that “qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote.”’” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743, quoting White v. County of Sacramento (1982) 31 Cal.3d 676, 680.)

^[3] As the project defined by the State Agencies in this case includes acquisition of the conservation easement incorporating the management plan for the “conversion” of the property, we need not consider and do not express an opinion on whether a pure acquisition of agriculture land with the intent to cease commercial farming on the land to passively allow it to return to a natural condition would be covered by any existing categorical exemptions. That is not what is at issue here.

^[4] The conservation easement includes language requiring Traynham to notify the State, take immediate remedial action, compensate any affected party, and prevent any future damage if there are any water seepage problems occurring as a result of water management on the property. This is evidence the State Agencies anticipate there is at least a possibility of seepage problems.