Saturday, March 05, 2011

The judge's conclusion in the Scott-Shasta case

Here is San Francisco Superior Court Judge Ernest Goldsmith's conclusion in his opinion on the environmentalists' lawsuit against the California Department of Fish and Game over the watershed-wide permits in Siskiyou County.


The Court notes the record reflects DFG's good faith effort to enforce environmental regulations while accounting for economic realities through the Programs. Pursuant to its manifold mandate, DFG endeavored to manage the expectations of multiple stakeholders in the Klamath Basin while grappling with the harsh truth that water is a widely shared yet severely limited resource in the West. All stakeholders involved here at some point encounter Coho, which course through this shared resource. Consequently, the Coho's listing under CESA will impose hardship on water users, especially agricultural operators, some of whom have been diverting water independent of DFG oversight before and after Coho were listed as endangered. In effect, water users have to adjust from an irregularly enforced ITP and SAA setting to a much higher and stricter plateau set by CESA. Understandably, the Programs seek to lessen the shock of this adjustment and make compliance more economically feasible by lowering permitting costs.

However, while DFG may pursue streamlined permitting processes, it may not do so by attenuating the strict directives of CESA. Given that the legislative mandate is to preserve listed species, the environmental analysis should consider all factors that may jeopardize their existence, including their presently reduced population. Water management is the central element of DFG's efforts to effect the survival of the Coho through the Programs. Water management inevitably has an economic component and water usage will increase or decrease in relation to cost. In the case of Coho survival versus agricultural use, no analysis has considered the economic value of the water and the Coho because there is a legislative mandate to preserve the Coho as a listed endangered species. However, the Programs have a significant fiscal component by offering the incentive of reduced permitting costs while threatening water users with high fees under the old permitting system or the potential of even higher costs and penalties involved in the enforcement process. As most or all agricultural operators inevitably participate in the Programs, more permits will issue, and Coho are at greater risk. CEQA requires analysis of this foreseeable increase of ITPs while CESA requires full mitigation of the increased take that naturally follows an ITP.

Overall, the more lenient effect of the Programs relates back to DFG's enforcement responsibilities. DFG has pointed out the logistical and practical difficulties in fully enforcing illegal take under CESA. This explains DFG's emphasis in creating a more liberal permitting system even though it will result in higher take of Coho under the rationale that an imperfect regulatory program is preferable to the alternative of not fully enforcing against agricultural operators. Respondent argues as justification for increased take under the Programs, the difficulty of detecting violations over a large geographical area and the uncertainty of follow through of prosecution. Nevertheless, the Programs must comply with the mandates of CESA and CEQA, which do not make exceptions for difficulties of enforcement, nor can the Programs relieve Respondent from its statutory enforcement duties.

In adjudicating the instant case, the Court does not and should not seek a particular result. Rather, the court's primary goal is to protect the public and ensure all legal and legislative mandates are followed by informed public policy makers. The Court may not "substitute [its] judgment for that of the people and their local representatives. [It] can and must, however, scrupulously enforce all legislatively mandated CEQA requirements." (Citizens of Godea Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564). In enforcing these legislative mandates, the Court must bear in mind that "the Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Laurel Heights, supra, 47 Cal.3d at 390 (citation omitted).)

CEQA's most meaningful impact, however, is as an accountability mechanism to ensure informed decisionmaking and informed public participation. The EIR, such as the ones at issue in the instant case, is

[A]n environmental 'alarm bell' whose purpose is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return. The EIR is also intended to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. Because the EIR must be certified or rejected by public officials, it is a document of accountability. (Laurel Heights, 47 Cal 3d at 392 (citation omitted).)

In the midst of conflicting opinions as to whether the Programs are proper, "[t]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA." (San Joaquin Raptor, supra, 149 Cal. App. 4th at 721-22.) Ultimately, the Court must protect the public interest by upholding CEQA, which "protects not only the environment but also informed self-government." (Laurel Heights, 47 Cal.3d at 392.)

Despite DFG's good faith efforts and potential hardship to water users, the Court must uphold the legislature's mandate to preserve listed species and conduct environmental review of all foreseeable consequences under CEQA and CESA.

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