High Court Action a Boon for Environmentalists

In a victory for environmentalists, the state Supreme Court has left intact a ruling indicating that the state cannot approve permits for developments that harm or displace endangered species.

But the state Department of Fish and Game is continuing to issue permits, and a department attorney on Thursday sought to downplay the significance of the ruling.

A lawyer for environmental groups suggested that the Supreme Court’s decision on Wednesday could undermine a sweeping Orange County conservation plan signed last week, but state Fish and Game officials disagreed, calling the plan legally sound.

Fish and Game officials have allowed development projects that may incidentally kill species protected by California law, as long as the developer provides comparable wildlife habitat elsewhere.

About 110 such permits have been issued for developments statewide, according to Fish and Game officials.

But in April, the 4th District Court of Appeal said that such agreements appear to violate the California Endangered Species Act, which allows incidental killing of protected species only for scientific, educational and management purposes.

While ruling that environmentalists had waited too long to challenge a proposed residential development in Riverside County, the appellate court said it would have declared the permit invalid if properly challenged.

The state Supreme Court denied review of the Riverside County case Wednesday, with only Justice Marvin R. Baxter voting to grant a hearing.

More than 150 plants and animals are protected under the California Endangered Species Act that are not covered by federal law.

Kate Neiswender, a lawyer for environmental groups in the case, said that the ruling should be an incentive to change state law to require public comment before approval of developments that harm or displace protected species.

“What the environmental community wants is an incidental-take procedure similar to the federal procedure, where there are public hearings, appropriate mitigation [to protect wildlife and the environment] is developed and implemented, and you look to make sure the mitigation’s worked,” said Neiswender, whose clients include the San Bernardino Valley Audubon Society.

“What we’ve had to date is a back-room process totally within the discretion of Fish and Game.”

Neiswender called the Supreme Court decision significant, saying it provides a means for environmental groups to sue to stop development projects.

But Craig Manson, general counsel for the state Department of Fish and Game, said that the April appellate court decision was not binding since, at the same time the court faulted the permit process, justices found that environmentalists had brought their case too late.

“The Department of Fish and Game has taken the position that the court’s view doesn’t have any legal effect,” said Manson, adding that department officials are continuing to write and honor permits under the section of the law that was challenged.

However, Manson said, “certainly there’s a cloud that’s put” over that section of the law because of the appellate court ruling, and he said efforts are underway in the state Legislature to clarify that section.

“We don’t believe that it’s broke in the way the appellate court said it was, but we do believe it would serve everyone’s interest to have our position clarified,” Manson said.

Robert Thornton, an Irvine attorney who has represented developers and public agencies in endangered-species cases, concurred, saying, “I think most people would hope that the Legislature would clarify this issue.”

Neiswender said that one project likely to be affected by the ruling is the massive conservation plan for central and coastal Orange County, the first major plan approved under the state’s Natural Community Conservation Planning program. The plan is designed to preserve rare plants and animals within a 37,000-acre preserve while providing developers new assurances outside the preserve’s boundaries.

In Sacramento, Manson disagreed, saying that the Orange County conservation plan is premised on a different section of the state Fish and Game code than the one called into question in court.

Neiswender said the proposed residential development in the Riverside County case was abandoned by the developer. The Moreno Highlands project, in Moreno Valley, originally was to contain 7,763 homes and a 650-acre business park.

The site included habitat of the Stephens kangaroo rat, a state-protected species whose habitat in Riverside County has shrunk from 300,000 acres to 22,000 acres in the past century.

The state’s permit allowed cities and the county to approve a habitat conservation plan that included land for the kangaroo rat elsewhere in the county, funded by a fee on developers. In return, a developer could not be prosecuted for incidentally killing the rodents.

Such permits are allowed under the federal Endangered Species Act, but the appeals court said that they are not authorized by the state’s version of the law. The 3-0 ruling was written by Justice Thomas E. Hollenhorst.

Contributing to this report were the Associated Press and Times staff writer Deborah Schoch.