Environmental Protection Information Center v. Dept. of Fish and Wildlife CA1/2 ( 2024 )

Filed 1/26/24 Environmental Protection Information Center v. Dept. of Fish and Wildlife CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ENVIRONMENTAL PROTECTION
INFORMATION CENTER et al.,
Petitioners and Appellants,
v.
DEPARTMENT OF FISH AND
WILDLIFE,
A163051
Respondent;
GREEN DIAMOND RESOURCE (Humboldt County
COMPANY, Super. Ct. No. DR190416)
Real Party in Interest and
Respondent.
Petitioners Environmental Protection Information Center and Center
for Biological Diversity (collectively, Centers) appeal the trial court’s order
denying their petition for writ of mandate filed against respondent
Department of Fish and Wildlife (Department). The petition challenged a
safe harbor agreement (Agreement) that the Department entered into with
real party in interest Green Diamond Resource Company (Green Diamond)
pursuant to the California Endangered Species Act (CESA).
CESA prohibits the “taking” (that is, the killing, capturing, or harming)
of an animal of an endangered or threatened species, including
1
unintentionally. But the Safe Harbor Agreement Program Act (Safe Harbor
Act) provides an exception to the no-take mandate. Intended to “encourage
landowners to manage their lands voluntarily to benefit endangered,
threatened, or candidate species” (Fish & G. Code, § 2080),1 the Safe Harbor
Act allows landowners and the Department to enter into agreements
requiring landowners to undertake conservation measures, spelled out in the
agreements, that the Department reasonably expects to provide a net benefit
to an endangered species. (§ 2089.6, subd. (a)(3)) In return, the landowner
receives the benefit of a safe harbor from liability for incidentally taking
members of the species on its land. (§ 2089.6, subd. (a).) Modeled on a
similar program of the federal Endangered Species Act, the underlying
insight of the Safe Harbor Act is that landowners may be discouraged from
undertaking conservation measures that draw more endangered animals
onto their land if they become subject to take liability as a result; granting
them a safe harbor gives them incentives to improve their land in ways that
benefit a species without increasing the prospect of take liability.
The Agreement at issue here concerns Humboldt martens, a small
predatory mammal of the weasel family that was designated as an
endangered species in 2018 by the Fish and Game Commission (Commission).
Humboldt martens were once widespread throughout the coastal forests of
Northern California, but extensive fur trapping and the loss of coastal
redwood forest habitat through logging have decimated marten populations
over the last century. Scientists believed they were extinct until 1996, when
the paw prints of a Humboldt marten were found on a tracking plate in Del
Norte County. Presently, the population of Humboldt martens is believed to
1 All further statutory references are to the Fish and Game Code unless
otherwise specified.
2
number fewer than 100 individuals, and in California today these creatures
are believed to live only in Humboldt and Del Norte Counties.
Green Diamond owns land and conducts logging operations in those
counties. Humboldt martens are largely absent from Green Diamond’s land,
but the northern portion of Green Diamond’s land sits between marten-
inhabited land and protected parklands with old-growth coastal redwoods
that are likely very suitable for martens. A group of biologists undertook an
extensive assessment of how to improve martens’ conservation prospects and
concluded that expanding martens’ range into the protected parklands was a
promising strategy, either by capturing and relocating martens or by
improving potential marten habitat that would connect to the parklands and
encourage martens over time to migrate and expand their range.
In general terms, the Agreement purports to implement that
conservation strategy on Green Diamond’s land over its 40-year term: the
Agreement sharply limits logging in two discrete areas of Green Diamond’s
land where martens are presently found; in other areas, it requires Green
Diamond to make a variety of incremental adjustments to its logging
operations that may make Green Diamond’s property more hospitable as an
expanded range for martens; and it requires Green Diamond to fund a study
of the feasibility of relocating martens onto a portion of Green Diamond’s
land that is closer to the parklands, and to contribute funds toward relocation
if it is found feasible.
The Department found that the Agreement was reasonably expected to
provide a net conservation benefit to martens, and the incidental take that it
authorized would not jeopardize the species’ continued existence. The
Centers challenge these findings as unsupported by substantial evidence in
the administrative record. We acknowledge the modest and incremental
3
nature of many of Green Diamond’s habitat-improvement commitments in
what the Agreement calls the Marten Special Management Area
(Management Area). But we nonetheless conclude that the Department’s
determination was supported by substantial evidence. For the Marten
Reserve Area, where martens are presently found, the Agreement
unquestionably provides a benefit to them by limiting Green Diamond to one
logging entry over the life of the Agreement. For the Management Area,
martens are largely absent but may migrate there (either on their own or
through relocation after a feasibility study). The Department concluded that
Green Diamond’s commitments will improve the Management Area as
potential habitat for martens. How great an improvement, and whether
these measures are enough to create viable new habitat for martens on Green
Diamond’s logged lands, are admittedly uncertain. But CESA does not
require scientific certainty, and the Department’s judgment of a reasonable
expectation of benefit to martens finds support in the administrative record,
particularly where the detriment to martens from any incidental take cannot
occur in the Management Area unless there is first a benefit—that is, unless
martens find the area improved enough to migrate there, or unless the
feasibility study concludes that martens can safely be moved to the
Management Area. For these reasons and others discussed below, we affirm
the judgment.
BACKGROUND
We turn now to a more detailed discussion, first describing the purpose
and scope of CESA and the Safe Harbor Act to provide context for the
Centers’ challenge.
4
I.
CESA
CESA was enacted in 1984 “to conserve, protect, restore, and enhance
any endangered species or any threatened species and its habitat.” (§ 2052.)
It defines “endangered species” as “a native species or subspecies . . .which is
in serious danger of becoming extinct throughout all, or a significant portion,
of its range due to one or more causes, including loss of habitat, change in
habitat, overexploitation, predation, competition, or disease.” (§ 2062.)
The Commission is tasked with establishing the lists of endangered and
threatened species and adds or removes species from these lists “based solely
upon the best available scientific information.” (§ 2070.) Once a species is
listed, no person or public agency may “take” a member of that endangered or
threatened species. (§ 2080.) “Take” is defined as “hunt, pursue, catch,
capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” (§ 86.)
Thus, an action may be a “take” even without killing or hurting an
endangered or threatened animal. (Center for Biological Diversity v.
Department of Fish & Wildlife (2015) 62 Cal.4th 204, 235–236.) The
penalties for a “take” are high: a fine of $25,000 to $50,000 “or imprisonment
in the county jail for not more than one year, or both that fine and
imprisonment.” (§ 12008.1.)
The Department implements and enforces CESA’s provisions. As part
of this statutory scheme, the Department may authorize the take of an
endangered or threatened species under certain circumstances, including
through the issuance of an incidental take permit (§ 2081.1) or as part of
implementing a natural community conservation plan (§ 2835).
5
II.
The Safe Harbor Act
In 2009, CESA was amended to include the Safe Harbor Act.
(§§ 2089.2-2090.25, added by Stats. 2009, ch. 184, § 1.) Recognizing that
much of California’s current and potential habitat for endangered species
“exists on property owned by private citizens,” the Safe Harbor Act
emphasizes the need for “a collaborative stewardship approach to these
lands” for conservation purposes. (§ 2089.2, subd. (b).) To that end, the Safe
Harbor Act’s aim is to “encourage landowners to manage their lands
voluntarily to benefit endangered, threatened, or candidate species, or
declining or vulnerable species, and not be subject to additional regulatory
restrictions as a result of their conservation efforts.” (§ 2089.2, subd. (c).)
The Safe Harbor Act allows the Department to authorize the incidental
taking of a covered species through a safe harbor agreement with the
landowner if eight enumerated conditions are met. (§ 2089.6, subd. (a).) In
particular, and as relevant to this appeal, the Department must find that
(1) “the implementation of the agreement is reasonably expected to provide a
net conservation benefit to the species” and (2) any incidental take under the
agreement “will not jeopardize the continued existence of the species.”
(§ 2089.6, subd. (a)(3), (4).)
The Safe Harbor Act further states that the program “is designed to
increase populations, create new habitats, and enhance existing habitats.
Although this increase may be temporary or long term, California safe harbor
agreements shall not reduce the existing populations of species present at the
time the baseline is established by the department.” (§ 2089.2, subd. (d).) In
other words, incidental taking is still prohibited under the agreement if the
6
taking would cause the population of the covered species to fall below the
population identified by the Department at the time of the agreement.
“Baseline conditions” mean “the existing estimated population size, the
extent and quality of habitat, or both population size and the extent and
quality of habitat, for the species on the land to be enrolled in the
agreement . . . . Baseline conditions shall be determined by the department,
in consultation with the applicant, and shall be based on the best available
science and objective scientific methodologies. For purposes of establishing
baseline conditions, a qualified person that is not employed by the
department may conduct habitat surveys, if that person has appropriate
species expertise and has been approved by the department.” (§ 2089.4,
subd. (b).)
III.
Humboldt Martens and Their Habitat
Humboldt martens, a subspecies of Pacific martens,2 historically
inhabited the coastal forests of Northern California and coastal Oregon.
After extensive fur trapping beginning in the late 1800s and then habitat loss
due to logging of coastal redwood forests, Humboldt martens’ population was
extirpated to the point where this species was believed to be extinct. In 1996,
a single marten was detected in Del Norte County, and more martens were
later detected in limited numbers, including near the California-Oregon
border. Humboldt martens presently occupy less than 5 percent of their
historical range, and their current population is believed to be fewer than 100
martens.
2 Martens are carnivorous mammals that belong to the mustelid family,
which also includes fishers, weasels, and minks.
7
In 2011, the Humboldt Marten Conservation Group (Conservation
Group) “was formed to address the conservation needs for the Humboldt
marten and to develop a conservation strategy.” Among the members of the
Conservation Group were the United States Fish and Wildlife Service, the
Department, Green Diamond, the Redwood National Park, and the
Department of Parks and Recreation. In 2015, the Conservation Group
published a comprehensive document titled “A Conservation Assessment and
Strategy for the Humboldt Marten . . . in California and Oregon”
(Assessment).
With respect to habitat needs, the Assessment noted that Humboldt
martens “most strongly selected stands of old growth, conifer-dominated
forests with dense, ericaceous shrub layers.” Along coastal California and
southern coastal Oregon, martens “also have used forest and shrub
dominated habitats occurring on less productive serpentine soils [or]
serpentine habitats.” These habitats offer “large trees and dead wood to
provide prey resources, resting structures, and escape cover to avoid
predators.” (In particular, martens are prey for bobcats, which tend to be
found in recently clear-cut or wildfire-devastated areas; by contrast, bobcats
are largely absent from “landscapes composed of a mix of 40-60 year old
regenerating stands and old growth or . . . unmanaged mid- and late-
successional stands.”)
Martens, according to the Assessment, “are very sensitive to the loss
and fragmentation of high quality habitat,” but “with careful management to
maintain and regenerate critical structures and if certain thresholds are not
surpassed, martens can be maintained along with timber production.”
The Assessment highlighted that the “overall goal of the conservation
strategy is to establish self-sustaining, interacting populations of Humboldt
8
martens within suitable habitat throughout their historical range in the
Assessment Area.” Among the strategies in support of that overarching goal,
the Assessment identified two that are relevant to the Agreement: promoting
expansion by martens into suitable but unoccupied habitat, and improving
degraded habitat near extant populations so that martens can expand their
range. The Assessment also identified what it called “Connectivity
Improvement Areas,” defined as “currently unsuitable habitat adjacent to or
between” current marten habitat and potential new marten habitat—in other
words, an area that could be used as a land bridge between a current marten
population area and a new habitat for martens. A portion of Green
Diamond’s timberland in Humboldt County was identified as a potential land
bridge because of its location between an area with an extant marten
population to the east and suitable but unoccupied habitat to the west in
state and national parks with old-growth, unlogged forests. The Assessment
cautioned, however, that “habitat restoration or management actions may
take decades to produce suitable habitat conditions supporting functional
connectivity. Therefore, translocation of individuals to unoccupied suitable
areas should be evaluated.” (Italics added.)
IV.
The Safe Harbor Agreement
In June 2015, the Centers petitioned the Commission to list Humboldt
martens as an endangered species under CESA. In August 2018, after
completing its formal review, the Commission listed Humboldt martens as an
endangered species.3 (See Cal. Code Regs., tit. 14, § 670.5, subd. (a)(6)(J).) In
3 A “candidate species” being reviewed by the Commission for addition
to the list of endangered or threatened species is afforded the full protection
of an endangered or threatened species under CESA during the period of
review. (§§ 2068, 2085.)
9
February 2016, while the Commission’s review of the petition was still
pending, Green Diamond submitted an application to the Department to
enter into a safe harbor agreement.4 The Department rejected the initial
draft agreement submitted by Green Diamond, finding it did not provide a
net conservation benefit to martens. Two years of negotiations between the
Department and Green Diamond followed, and the Department approved the
Agreement in April 2018.
The Agreement is for a term of 40 years and covers 363,967 acres of
“Enrolled Lands” owned and managed by Green Diamond for timber
harvesting. At the time of the Agreement, Humboldt martens had been
detected in two discrete areas of the Enrolled Lands, but were otherwise
“rare or absent from the majority of the Enrolled Lands.” For purposes of
establishing “baseline conditions,” the existing marten population on the
Enrolled Lands was estimated to be “likely very small and transitory.” The
Agreement also noted that the martens’ “use of habitat within the Enrolled
Lands remains unknown because [their] expansion into managed lands is
limited and a recent discovery. Therefore, “[a] reliable and accepted
definition of suitable habitat for [martens] on managed coastal redwood
forest does not exist.” The “starting point for baseline habitat conditions”
was determined to be “an average forest age of approximately 41 years.”5
4 As the Centers point out, Green Diamond opposed the listing of
Humboldt martens as an endangered species during a February 11, 2016
public hearing before the Commission, based on concerns the listing would
have on its operations.
5 The administrative record reveals that the Department and Green
Diamond engaged in extensive negotiations regarding what to establish as
the baseline for the Agreement. Some Department scientists believed that
average forest age was a poor metric because it did not capture what was
important about a patch of forest to martens; one very old tree could skew the
average upward, and martens rely on forest stands rather than individual
10
The Agreement includes various commitments by Green Diamond with
respect to assisted dispersal, habitat management, take avoidance and
minimization, and monitoring and reporting. We discuss these commitments
below.
A. Assisted Dispersal
The Assessment recommended that “translocation of martens to
unoccupied suitable areas should be evaluated” as a high priority
conservation action. The Agreement requires Green Diamond to assist this
evaluation by “provid[ing] financial and technical support for a marten
assisted dispersal feasibility analysis conducted by [the Department.]
Depending on the recommendations of the analysis, Green Diamond shall
then “provide financial and technical support for capture and assisted
dispersal” of martens in collaboration with the Department. This includes
the capture, collar, and release of martens into recommended release areas,
including portions of the Enrolled Lands. Lastly, “Green Diamond shall
provide financial and in-kind technical support to monitor collared martens”
in order “to determine date, movements, territory establishment,
reproductive activity, use of resting and denning structures, and habitat use.”
In total, Green Diamond has agreed to provide $245,000 in funding and
$245,000 worth of in-kind support in the form of staff and equipment for the
assisted dispersal project.
trees for habitat. These scientists contended that aerial images
demonstrated the existence of potential suitable habitat on parts of Green
Diamond’s land, and recommended that the Department rely for its baseline
determination not on average age but on “quadratic mean diameter,” which
they contended would capture important characteristics about the age of
forest stands. Notwithstanding the extensive debate over baseline in the
record, the Centers do not contest the Department’s determination of the
baseline.
11
B. Habitat Management
1. Marten Reserve Area, Management Area, and
the Moore Tract
The Agreement establishes the 127,217-acre Management Area on
about a third of the Enrolled Lands. Located between known occupied
marten sites to the east and state and national parks to the north, west, and
south, the Management Area is a “high priority connectivity area” that has
the potential to serve as a “land bridge” for the dispersal of martens from
their presently occupied sites to more suitable habitat within the parks.
The Agreement also establishes a 2,098-acre “Marten Reserve Area”
(Reserve Area). The Reserve Area is located within the Management Area in
Del Norte County and is comprised of mostly serpentine habitat.6 It is one of
the two discrete areas where martens have been detected on the Enrolled
Lands. The Agreement provides that no timber harvesting shall occur within
the Reserve Area during the 40-year term of the Agreement.
The Moore Tract, a small area of the Enrolled Lands near the
California-Oregon border, is the second discrete area of Green Diamond lands
where martens have been detected. The Agreement limits Green Diamond to
one harvest entry within the Riparian Management Zones of the Moore Tract
during the term of the Agreement.
Within both the Management Area and the Moore Tract, Green
Diamond agreed to retain an unspecified number of “downed large woody
debris to enhance structural complexity, foraging, denning, resting, and
6 “In contrast to the dense old growth stand structure used by martens
on productive soils, stands used in serpentine soils can include any seral
stage and more variable tree over-story canopy closure ranging from sparse
(20%) to dense . . . Serpentine habitats used by martens also contain
abundant rocky outcrops, providing chambers that martens have used as
resting structures when large woody structures are rare.”
12
escape cover benefiting” martens. Green Diamond also agreed to create slash
piles “at a rate averaging one structure for every 5 – 10 acres of clear-cut” to
provide further “structural complexity, cover, resting and denning habitat”
for martens.
2. TREE Scorecards
The Agreement requires Green Diamond’s timber-harvesting
operations to incorporate what the Agreement dubs “Terrestrial Retention of
Ecosystems Elements” or TREE Guidelines, intended to preserve trees with
elements that are attractive to martens. The TREE Guidelines are a
scorecard that assigns points to various tree features that benefit martens,
such as large or small cavities, broken tops, and complex crowns. Green
Diamond’s foresters are to compare trees in an area planned for harvesting to
the scorecard criteria and award points for each beneficial feature listed,
preserving trees that reach a designated score threshold. In the Management
Area and the Riparian Management Zones of the Moore Tract, as well as in
additional watersheds where martens are detected during the life of the
Agreement, Green Diamond is required to apply a modified scorecard that
preserves additional trees.
3. Riparian Management Zone (RMZ) Restrictions
RMZ “refers to forestlands designated in the 2008 Aquatic Habitat
Conservation Plan (Aquatic Plan) approved by the National Marine Fisheries
Service” and include portions of the Enrolled Land that border a watercourse
or surround a lake or spring. The Aquatic Plan is a voluntary agreement
that Green Diamond entered into with the United States Fish and Wildlife
Service pursuant to the federal Endangered Species Act. The Aquatic Plan
requires the retention of snags and trees and “specifies several conservation
13
measures that Green Diamond must perform within RMZs, which constitute
90,000 acres, or approximately 25% of the Enrolled Lands.”
The Agreement requires that Green Diamond implement the measures
currently defined under the Aquatic Plan on all Enrolled Lands covered
under the Aquatic Plan. The Agreement further builds on the Aquatic Plan
by limiting Green Diamond to one harvest entry within the RMZs on the
Moore Tract during the term of the Agreement since martens were detected
there. The only exception to this is “light thinning conducted with the
specific objective of enhancing wildlife structure.”
4. Den Protection
Finally, the Agreement requires that Green Diamond retain all marten
natal and maternal dens it discovers or is made aware of on the Enrolled
Lands, and to incorporate tree retention around these den structures,
whether occupied or not, during and post timber harvest operations. Green
Diamond is further required to establish a “0.5-acre no-harvest habitat
retention area” around all natal dens, and any harvest in this retention area
may only be done in consultation with the Department with the goal of
increasing or accelerating the development of large trees within the area.
C. Take Avoidance and Minimization
Pursuant to the Safe Harbor Act, the Agreement authorizes Green
Diamond “to take the Covered Species incidental to implementing the
Management Actions and Management Practices.”7 As required under
7 “Management Actions” are defined in the Agreement as “activities
conducted on the Enrolled Lands that are reasonably expected to provide a
net conservation benefit for the Covered Species within the Enrolled Lands.”
“Management Practices” are defined as “Green Diamond’s land use and
maintenance activities on the Enrolled Lands that affect the Covered Species
or their habitat,” including timber operations.
14
section 2089.2, subdivision (d), the Agreement provides that it “shall not
reduce the existing populations of species or habitat present at the time the
baseline is established by [the Department.] The Agreement reiterates
however, that based on the limited number of detections, “a reliable estimate
of the number of martens currently existing on Enrolled Lands is unavailable
and it is not possible to assess any trend in the marten population at this
time.”
The Agreement implements three measures to avoid or minimize the
incidental taking of martens or returning the Enrolled Lands to baseline
conditions.8 The first is to mark for retention or non-disturbance all known
marten-occupied den sites. Further, if the den site is within 0.25 miles of a
timber harvesting unit, a 0.25-mile buffer zone will be created and timber
operations shall not occur within that zone during the marten denning
season, unless Green Diamond and the Department determine that the den
site is unoccupied. The second measure is to “ensure all water tanks and
pipes used for timberland management . . . are marten-proofed to prevent
entrapment and/or drowning.” The water tanks and pipes are then to be
checked at least once a year to ensure they are still secured against marten
entry.
The third measure is to “prevent unauthorized marijuana cultivation
and associated abuse of pesticides on the Enrolled Lands.” To accomplish
this, Green Diamond is to “maintain a system of controlled access . . . using
locked gates on roads, security patrols, and written permits for authorized
8 This is pursuant to a separate provision under the Safe Harbor Act
which requires that the Department “finds that the landowner has agreed, to
the maximum extent practicable, to avoid or minimize any incidental take
authorized in the agreement, including returning to baseline.” (§ 2089.6,
subd. (a)(5).)
15
use of the Enrolled Property.” Green Diamond must also “conduct at least
one annual aerial surveillance for marijuana cultivation hot spots where
martens are likely to be exposed to pesticide use on the Enrolled Lands, and
provide annual safety training for field employees on detection and reporting
of suspicious and unauthorized use of the Enrolled Property.”
D. Monitoring and Reporting, Modification, and Termination
Pursuant to section 2089.6, subdivision (a)(6), the Agreement requires
that Green Diamond implement a monitoring program and submit annual
monitoring reports “to provide information for [the Department] to evaluate
the effectiveness and efficiency of this Agreement, including whether the Net
Conservation Benefits set forth in this Agreement are being achieved and
whether the provisions of this Agreement are being implemented.” Ten
specific monitoring and reporting requirements are listed. These include
monitoring radio-collared martens that are captured and released pursuant
to the assisted dispersal plan and conducting non-invasive surveys to
estimate marten occupancy in the Management Area and the Enrolled Lands
over time.9 Green Diamond is also required to establish an internal
compliance team that will include an experienced wildlife biologist as the
Agreement Coordinator who will review “each proposed THP during its
development and inform[] the registered professional forester[] preparing the
THP when any special Agreement-related restrictions and/or mitigations
occur in the area.”
9 We do not further discuss these monitoring and reporting
requirements since the Centers do not challenge the sufficiency of the
monitoring program under section 2089.6, subdivision (a)(6). We note
however, that this is a separate and distinct requirement from the finding of
net conservation benefit under section 2089.6, subdivision (a)(3).
16
The Agreement further provides for “Adaptive Management” which
“allows for mutually agreed-upon changes to the Agreement’s Management
Actions and Management Practices in response to changing conditions or new
information” that will better serve to avoid or minimize incidental take or
provide a net conservation benefit. For example, the parties could agree to
increase the number of slash piles Green Diamond creates if monitoring
shows that martens benefit from them.
Lastly, the Department has the discretion to terminate the Agreement
prior to its expiration date under certain enumerated conditions, including if
it determines that “the Agreement is not providing the Net Conservation
Benefit anticipated or otherwise is not satisfying the requirements of the
Program.”
V.
Procedural History
The Centers filed a petition for writ of mandate that challenged the
Department’s approval of the Agreement under the Safe Harbor Act.
Specifically, the Centers argued the Department erred in finding that the
Agreement provided a net conservation benefit and that it would not
jeopardize the continued existence of Humboldt martens based on “the best
scientific and other information that is reasonably available.” (§ 2081,
subd. (c).) A certified administrative record containing 542 documents (or
approximately 9,000 pages) was lodged with the trial court. The record
included various scientific literature on Humboldt martens, the Assessment,
and hundreds of e-mails among Department staff members and between the
Department and Green Diamond regarding the Agreement’s development
and terms.
17
Following briefing by the parties, the trial court held a one-day bench
trial and thereafter issued a statement of decision.10 At the onset, the court
determined that the proper standard of review was whether the
Department’s decision was arbitrary or capricious pursuant to a traditional
mandamus and not whether the decision was supported by substantial
evidence pursuant to an administrative mandamus as the Centers argued.
The court however, noted that its decision would be the same even under a
substantial evidence standard of review.
The trial court held that the Centers failed to show that the
administrative record did not support the Department’s conclusion that the
Agreement was reasonably expected to provide a net conservation benefit to
Humboldt martens. The court further held that the Centers failed to show
how the Agreement’s habitat preservation measures could jeopardize the
martens and that the Department “made a reasonable finding of no jeopardy
. . . based on the cumulative benefits of Green Diamond’s conservation
commitments relative to any impacts on the Martens.” The trial court denied
the Centers’ petition and entered judgment in favor of the Department and
Green Diamond.
The Centers now appeal.
DISCUSSION
I.
Standard of Review
In a mandamus action, our review of the administrative record “is the
same as the trial court’s: The appellate court reviews the agency’s action, not
the trial court’s decision; in that sense appellate judicial review . . . is de
10 The trial court requested and received proposed statements of
decision from the parties following the bench trial.
18
novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 427 (Vineyard Area Citizens).)
The Centers argued below that the trial court should review the
Agreement using an administrative mandamus standard. Under this
standard of review, “abuse of discretion is established if the court determines
that the findings are not supported by substantial evidence in the light of the
whole record.” (Code Civ. Proc., § 1094.5, subd. (c).) The Department argued
that review was proper under traditional mandamus standards (Code Civ.
Proc., § 1085), which looks at “whether the [agency’s] decision was arbitrary,
capricious, or entirely lacking in evidentiary support.” (Bunnett v. Regents of
University of California (1995) 35 Cal.App.4th 843, 849.)
The trial court held that traditional mandamus was the proper
standard of review since the Department’s decision approving the Agreement
was more akin to a quasi-legislative action than to an adjudicative or quasi-
adjudicative action which would be subject to administrative mandamus
review. The court also noted that its decision “would be the same even if it
applied the substantial evidence test to the circumstances here presented.”
We need not resolve the merits of this issue because, like the trial
court, we find that even under the less deferential administrative mandamus
standard, there is substantial evidence to support the Department’s approval
of the Agreement under the Safe Harbor Act.
II.
The Centers Have Standing
Green Diamond first contends that the Centers do not have standing to
challenge the Department’s approval of the Agreement because they have not
shown “how they are injured by the Agreement or how this action promotes
the public interest” since the Agreement “is working.” In general, a party
19
must be “beneficially interested” to seek a writ of mandate. (Code Civ. Proc.,
§ 1086.) This requirement “has been generally interpreted to mean that one
may obtain the writ only if the person has some special interest to be served
or some particular right to be preserved or protected over and above the
interest held in common with the public at large.” (Carsten v. Psychology
Examining Com. (1980) 27 Cal.3d 793, 796.)
“Nevertheless, ‘ “where the question is one of public right and the object
of the mandamus is to procure the enforcement of a public duty, the
[petitioner] need not show that he has any legal or special interest in the
result, since it is sufficient that he is interested as a citizen in having the
laws executed and the duty in question enforced.” ’ [Citation.] This ‘ “public
right/public duty” exception to the requirement of beneficial interest for a
writ of mandate’ ‘promotes the policy of guaranteeing citizens the opportunity
to ensure that no governmental body impairs or defeats the purpose of
legislation establishing a public right.’ [Citations.] We refer to this variety of
standing as ‘public interest standing.’ ” (Save the Plastic Bag Coalition v.
City of Manhattan Beach (2011) 52 Cal.4th 155, 166.)
Here, we find the Centers have “public interest standing” to bring the
subject action and therefore need not decide whether the Centers are also
beneficially interested under Code of Civil Procedure, section 1086. The
Centers are non-profit environmental organizations that brought the subject
writ for violation of the Safe Harbor Act under CESA. “Laws providing for
the conservation of natural resources are of great remedial and public
importance . . . .” (San Bernardino Valley Audubon Society v. City of Moreno
Valley (1996) 44 Cal.App.4th 593, 601.) Moreover, the object of the Centers’
writ is to enforce the Department’s public duties under the Safe Harbor Act
20
in ensuring that certain conditions are met before it authorizes the incidental
take of an endangered species like Humboldt martens by a landowner.
Green Diamond argues the Centers lack standing because they failed to
present evidence that the subject action promotes a public interest because
the Agreement “was reasonably expected to work—and is working.”
However, whether there is substantial evidence to support that the
Agreement is reasonably expected to provide a net conservation benefit and
will not jeopardize the continued existence of the martens are the very issues
we are deciding in this subject appeal. Green Diamond cannot unilaterally
conclude that the Agreement is in fact “working” in order to attack the
Centers’ standing under the public interest exception. Although we have
taken judicial notice of Green Diamond’s annual reports which include the
detection of martens on the Enrolled Lands, those by themselves do not
establish that the Agreement has met the conditions set forth under the Safe
Harbor Act.
III.
The Net Conservation Benefit Finding is Supported by
Substantial Evidence
The Centers contend that no substantial evidence supports the
Department’s finding that the Agreement is reasonably expected to provide a
net conservation benefit under section 2089.6, subdivision (a)(3). “Net
conservation benefit” is defined as “the cumulative benefits of the
management activities identified in the agreement that provide for an
increase in a species’ population or the enhancement, restoration, or
maintenance of covered species’ suitable habitats within the enrolled
property.” (§ 2089.4, subd. (h).) In making this finding, “the length of the
agreement, any offsetting adverse effects attributable to the incidental taking
allowed by the agreement, and other mutually agreed upon factors” must be
21
considered. (Ibid.) “Net conservation benefits shall be sufficient to
contribute either directly or indirectly to the recovery of the covered species.
These benefits include, but are not limited to, reducing fragmentation and
increasing the connectivity of habitats, maintaining or increasing
populations, enhancing and restoring habitats, and buffering protected
areas.” (Ibid.)
As discussed above, we review the Department’s findings for
substantial evidence in the light of the entire administrative record. (Code
Civ. Proc., § 1094.5, subd. (c).) Under this standard, great deference is
afforded to the Department’s substantive factual findings and “the reviewing
court ‘may not set aside an agency’s approval . . . on the ground that the
opposite conclusion would have been equally or more reasonable,’ for, on
factual questions, our task ‘is not to weigh conflicting evidence and determine
who has the better argument.’ ” (Vineyard Area Citizens, supra, 40 Cal.4th at
p. 435.)
In reviewing the Department’s determination, we are also cognizant
that “[w]e are neither scientists nor policy makers. The agencies entrusted
with the statutory obligation of balancing the needs of human populations
with those of endangered plants and animals are guided by the expertise of
their scientific staffs and independent consultants. We cannot supplant their
decisions because we find the views of other experts and other policy options
more appealing.” (Environmental Council of Sacramento v. City of
Sacramento (2006) 142 Cal.App.4th 1018, 1042 (Environmental Council of
Sacramento).)
Based on the record before us and the deferential standard of review,
we find no abuse of discretion in the Department’s determination that the
22
Agreement is reasonably expected to provide a net conservation benefit to the
martens.11
A. Failure to Analyze Adverse Effects
1. The Centers Did Not Forfeit this Argument
The Centers first argue that in determining net conservation benefit,
the Department failed to analyze the offsetting adverse effects attributable to
the incidental take of martens allowed by the Agreement. (§ 2089.4,
subd. (h).) The Department contends that the Centers forfeited this
argument because they failed to raise it before the trial court. In general,
appealing parties must adhere to the theory they presented before the trial
court and may not assert a new theory for the first time on appeal. (Hewlett-
Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.) This rule is
grounded on principles of fairness to both the trial court and the opposing
parties. (Ibid.) An exception to this rule exists however, when a new theory
raised on appeal pertains only to questions of law on undisputed facts in the
record. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
Although the Centers did not raise the exact argument below that they
now raise on appeal, their arguments below are sufficiently related such that
the principles of fairness are not violated in our consideration of the Centers’
argument regarding adverse effects. For example, the Centers argued in
their brief below that there was no substantial evidence to support that the
Agreement would provide a net conservation benefit. The Centers also
argued there was no substantial evidence to support the Department’s “no
11 The Department and Green Diamond argue that the Centers failed to
discuss all material evidence in the record and ignored substantial evidence
that was unfavorable to their position. While we agree that the Centers’
summary of the evidence was lacking in some respects, we do not find it so
incomplete or one-sided as to warrant a finding of waiver by the Centers.
23
jeopardy” determination based in part on the Department’s failure to analyze
“any adverse impacts of the taking” as required under section 2081,
subdivision (c). The Centers further argued that the Department failed to
analyze “the practicability of more stringent measures to minimize incidental
take.”
Moreover, the issue presented before us is a question of law—whether
the Department violated the provisions of the Safe Harbor Act in approving
the Agreement—based on the undisputed facts that appear in the
administrative record. Thus, even if the Centers’ argument is considered a
new one, we exercise our discretion and consider it here.
2. The Department Considered the Adverse Effects
Attributable to Incidental Taking
The record reflects that the Department considered and weighed the
adverse effects attributable to the incidental take of martens that is allowed
by the Agreement. The Agreement itself recognizes that Green Diamond’s
timber operations “may result in habitat modification and the incidental take
of martens. Road construction, harvest operations, and forest management
practices may take denning females and kits through removal of the denning
structure, or disturbance causing abandonment of the occupied den resulting
in death of dependent kits and possible, but unlikely, direct harm or death to
the female.” The Agreement further notes that “[v]ehicular strikes resulting
from use of forest roads and accidental entrapment in water facilities
resulting in death or drowning of martens may also take martens.”12
The Department and Green Diamond discussed the importance of the
retention of habitat around known marten den sites during the negotiation of
12 This refutes the Centers’ argument that the Department only
weighed the adverse effects from Green Diamond’s conservation measures,
and not from its management practices such as timber harvesting.
24
the Agreement. The final Agreement implements several avoidance and
minimization measures, including the retention of known den sites and a
0.25-mile radius zone around these sites in which no timber operations are
allowed to take place during the martens’ denning season, with a few
exceptions. In recognizing that any martens on the Enrolled Lands may also
be at risk of getting trapped and drowning in water facilities, Green Diamond
agreed to “marten-proof” all water tanks and pipes and to check them
annually for potential marten entry. This shows that the Department not
only considered the adverse effects attributable to the incidental take of
martens, but considered the ways in which these effects could be minimized
or avoided under the Agreement.
The record therefore supports that the Department weighed the
adverse effects against Green Diamond’s various habitat management and
assisted dispersal commitments and found that the Agreement provided a net
conservation benefit to the martens. This finding was bolstered by the fact
that certain measures would be taken to avoid or minimize any incidental
take of martens that enter onto the Enrolled Lands. Again, we afford the
Department’s factual findings great deference since we do not have the
scientific background or expertise that the Department does in this subject
area. (Environmental Council of Sacramento, supra, 142 Cal.App.4th at
p. 1042.) Moreover, that there is also evidence that supported the Centers’
position does not entitle us to weigh conflicting evidence in their favor where
the Department’s decision is supported by substantial evidence. (Vineyard
Area Citizens, supra, 40 Cal.4th at p. 435.)
B. Assisted Dispersal
There is substantial evidence to support the Department’s
determination that the Agreement’s assisted dispersal commitments are
25
reasonably expected to provide a net conservation benefit to the martens. As
already discussed, one of the main conservation strategy goals highlighted in
the Assessment was to “[p]romote expansion and re-establishment of
populations into currently suitable but unoccupied habitat.” Because a
portion of the Enrolled Lands is situated between an extant marten
population to the east and suitable marten habitat to the west in the old-
growth forests, the Enrolled Lands were identified as a connectivity
improvement area with currently unsuitable marten habitat. However, since
it could take decades of habitat restoration efforts for this area to acquire
suitable habitat conditions to support functional connectivity for the martens,
the Assessment encouraged the evaluation of “translocation of individuals to
unoccupied suitable areas” or assisted dispersal. To that end, the
Assessment identified “the efficacy of assisted dispersal” as a “high priority
information need.”
In responding to this informational need, the Agreement commits
Green Diamond to contributing $245,000 in funding and an additional
$245,000 worth of staff and equipment towards the Department’s assisted
dispersal project. This project includes first conducting a feasibility analysis
and then, depending on the outcome of the analysis, potentially capturing,
collaring, and releasing martens into “recommended release areas” that
include portions of the Enrolled Lands. The collared martens would then be
monitored “to determine fate, movements, territory establishment,
reproductive activity, use of resting and denning structures, and habitat use.”
During the negotiation of the Agreement, the Department recognized assisted
dispersal to be a main benefit of the Agreement.
The Centers contend the Department erred in finding that the assisted
dispersal commitments provided a net conservation benefit given that (1) a
26
feasibility study had not yet been conducted; and (2) relocation of martens
may be infeasible or risky since martens would be relocated onto the Enrolled
Lands and not within the state and national parks. First, we disagree with
the argument that a feasibility study should have first been conducted before
the Agreement was finalized. As further discussed below, the Agreement also
includes a number of habitat management commitments that are reasonably
expected to provide a net conservation benefit to the martens.13 Accordingly,
the Department’s net conservation benefit finding did not hinge on the
feasibility of assisted dispersal.
Second, even if the study ultimately concludes that assisted dispersal is
not feasible, the study itself would still provide a benefit since information
would be obtained from it as to the efficacy and challenges of assisted
dispersal that could be used in future marten studies or projects. In Friends
of Animals v. United States Fish & Wildlife Service (9th Cir. 2022) 28 F.4th
19, the Ninth Circuit considered whether information obtained from a barred
owl removal experiment constituted a net conservation benefit under the
federal Endangered Species Act. (Friends of Animals, at p. 29.) The court
held that it did because “conservation” was broadly defined under the
Endangered Species Act “as ‘all methods and procedures’ necessary for the
recovery of the species, which ‘include, but are not limited to, all activities
associated with scientific resources management such as research.’ ” (Ibid.)
CESA’s definition of “conservation” is substantively identical to its federal
counterpart and also includes reference to “research” as part of the “methods
13 Internal e-mails show that the Department’s staff contemplated
waiting to complete the feasibility study first before including assisted
dispersal in the Agreement but found this to be unnecessary given the other
commitments in the Agreement and the length of time it would take to
complete the study.
27
and procedures” necessary for the recovery of an endangered species.
(§ 2061.) We therefore similarly find that an informational benefit
constitutes a net conservation benefit under CESA.
The Centers argue that although an informational benefit may
constitute a net conservation benefit in some cases, any informational benefit
from the feasibility study here does not offset the adverse effects of allowing
incidental take, unlike the barred owl study conducted in Friends of Animals.
This might be the case if we considered the informational benefit of the
feasibility study in isolation, but the Safe Harbor Act makes clear that it is
the cumulative benefits of the management actions that must be considered
in determining whether the Agreement provides a net conservation benefit.
(§ 2089.4, subd. (h).) Here, substantial evidence supports the Department’s
conclusion that the informational benefits obtained from the feasibility study,
combined with the other habitat management commitments, provide a net
conservation benefit to the martens.
C. Habitat Management Commitments
There is substantial evidence to support the Department’s finding that
the Agreement’s habitat management commitments, when considered
cumulatively, are “reasonably expected to provide a net conservation benefit.”
(§ 2089.6, subd. (a)(3).) One of the Assessment’s stated conservation strategy
goals was to “[i]mprove habitat conditions in order to facilitate functional
connectivity, successful dispersal between areas of suitable but unoccupied
habitat and between extant populations. There is evidence to support that
the commitments will be beneficial in “the enhancement, restoration, or
maintenance of [the martens’] suitable habitat” within the Enrolled Lands
which will in turn, increase the connectivity of the martens’ habitats in
28
bringing them closer to their suitable and ideal habitat in the state and
national parklands to the west. (§ 2089.4, subd. (h).)
We are not persuaded by the Centers’ initial argument that during the
negotiation process, Green Diamond “refused to agree to measures that
would make its business more difficult or costly” and that the management
actions it did put forth were already standard practice or “would not
appreciably impact its actual operations.” While we recognize the
incremental nature of Green Diamond’s conservation commitments, the
relevant standard is whether the commitments that were ultimately agreed
to were “reasonably expected to provide a net conservation benefit to”
Humboldt martens. (§ 2089.6, subd. (a)(3).) Even if certain management
actions already constituted standard practices for Green Diamond, there is
still a benefit in Green Diamond committing to continue these practices for
the 40-year duration of the Agreement as it would not otherwise be required
to do so. This includes the measures defined under the Aquatic Plan since
Green Diamond or the United States Fish and Wildlife Service could
otherwise revoke or suspend the Aquatic Plan in the interim.
The Centers’ primary concern is that the Enrolled Lands are “managed
lands” logged by Green Diamond and therefore are not compatible with the
habitat needs of Humboldt martens. It is certainly the case that martens
prefer old-growth forests with dense shrub layers to lands where timber
harvesting has occurred. But, as the Centers conceded at oral argument,
CESA’s no-take mandate prohibits only the harming of members of an
endangered species and not harms to their preferred habitats. Moreover,
although the Assessment noted martens’ sensitivity to fragmentation of high-
quality habitat, it also highlighted that “with careful management to
maintain and regenerate critical structures and if certain thresholds are not
29
surpassed, martens can be maintained along with timber production.”
(Italics added.)
The record provides substantial evidence from which the Department
concluded that Green Diamond’s habitat-management commitments will
improve habitat on the Enrolled Lands, and that these improvements are
reasonably expected to provide a net conservation benefit to martens.
(§ 2089.4, subd. (h).) Based on its location, a portion of the Enrolled Lands is
a connectivity area that could serve as a “land bridge” between Yurok tribal
lands to the east where a core marten population resides and old-growth
forests in state and national parks to the west that are ideal habitat for the
martens.
At the time of the Agreement, martens were rare or absent from the
Enrolled Lands except for on the Moore Tract and the Reserve Area.
Accordingly, the Agreement limits Green Diamond to one harvest entry
within the RMZs in the Moore Tract and no timber harvesting within the
Reserve Area during the term of the Agreement. The Centers contend that
the Reserve Area does not produce trees suitable for commercial logging due
to its serpentine soil, so Green Diamond would likely not have logged this
area even in the absence of the Agreement. However, this does not negate
the conservation benefit created by Green Diamond’s commitment not to
conduct any logging for 40 years in an area where martens have been
detected. A management activity that provides for the maintenance of a
covered species’ suitable habitat is by definition a “net conservation benefit.”
(§ 2089.4, subd. (h).)
The Agreement further provides for the retention and creation of
various habitat features that are reasonably expected to benefit the martens.
Marten-specific TREE measures are required to be implemented in both the
30
Management Area (a “high priority connectivity area” that would serve as the
location for assisted dispersal) and the Moore Tract. The TREE scorecard
system will lead to the retention of more trees with features beneficial to the
martens and in turn, will also contribute to an increased average forest age.
We acknowledge that the Agreement’s commitments will not create
ideal habitats for martens. But we also recognize that the Enrolled Lands
are private lands used for timber harvesting, and the Agreement was
voluntarily undertaken by Green Diamond. Without the Agreement,
incidental take would be prohibited, but it is very likely that Green Diamond
would have continued its logging operations, since martens are currently rare
or absent from most of the Enrolled Lands. The Department appropriately
measured the net benefit to martens from the Agreement not against a better
hypothetical agreement but against the status quo. Its determination that
the conservation measures set out in the Agreement—limitations on
harvesting in specified areas where martens are present, the retention of a
larger number of mature trees with features that draw martens, the
retention of woody debris and slash piles for resting and denning, buffer
areas around natal dens, and other measures—are reasonably expected on
balance to benefit martens is supported by substantial evidence in the record.
IV.
The No Jeopardy Finding is Supported by Substantial Evidence
In their supplemental brief, the Centers argue there is no evidence to
support the Agreement’s finding that “[t]he take authorized by this
Agreement will not jeopardize the continued existence of the Covered Species
based upon the provisions of subdivision (c) of section 2081 of the Fish and
31
Game Code.” 14 Section 2081, subdivision (c) in turn provides that a no
jeopardy finding must be “based on the best scientific and other information
that is reasonably available, and shall include consideration of the species’
capability to survive and reproduce, and any adverse impacts of the taking on
those abilities in light of (1) known population trends; (2) known threats to
the species; and (3) reasonably foreseeable impacts on the species from other
related projects and activities.”
Again, we exercise the required deferential standard in reviewing the
Department’s finding of no jeopardy. “We will not arbitrate between
scientists and we will not intrude on the public agencies’ duties to make
policy and protect the species.” (Environmental Council of Sacramento,
supra, 142 Cal.App.4th at p. 1042.) Further, the Department’s finding does
“not need to be extensive or detailed” so long as “ ‘ “reference to the
administrative record informs the parties and reviewing courts of the theory
upon which an agency has arrived at its ultimate finding and decision
. . . .” ’ ” (Environmental Protection Information Center v. California Dept. of
Forestry & Fire Protection (2008) 44 Cal.4th 459, 516.)
The administrative record contains over a hundred scientific articles
and studies regarding martens and their habitat needs. The 126-page
Assessment is perhaps the most comprehensive source of information on
Humboldt martens to date and is cited extensively in the parties’ briefs. The
Assessment discusses the Humboldt martens’ distribution and population
trends, their ability to survive and reproduce, the current and potential
threats affecting their populations, and high priority conservation actions “to
14 This court requested the parties submit supplemental briefing as to
what evidence supports or fails to support the Agreement’s finding of “no
jeopardy.” Each party thereafter submitted a letter brief, as well as a
response letter brief.
32
ameliorate impacts of each specific threat with moderate to high impact
levels.”
As mentioned above, although the Assessment provides that martens
are sensitive to habitat fragmentation, it also states that “martens can be
maintained along with timber production” with “careful management to
maintain and regenerate critical structures.” A prior article by the
Assessment’s authors noted there was a surprising and significant number of
marten detections in open pine forests with serpentine soils. This suggested
to the authors that in addition to large standing trees and down logs found in
old-growth forests, structures like rock piles and boulders found in these open
sites also provided suitable resting and denning sites for the martens.
Substantial evidence then, supports that the Department considered
the best scientific information reasonably available, including the adverse
impacts of taking given known population trends and known threats to
Humboldt martens, in concluding that the Agreement would not jeopardize
the continued existence of this species. (§ 2081, subd. (c).) The Centers
disagree and argue that the Agreement “allows Green Diamond to kill an
unlimited number of martens as it destroys large swaths of marten habitat
and maintains unsuitable conditions on its lands.” This is not a reasonable
or realistic representation given what the underlying circumstances and facts
are here.
It is undisputed that historical logging practices have been identified as
a known threat to Humboldt martens. It is also undisputed that the Enrolled
Lands are commercially logged lands. However, it is also important to
remember that these martens have been largely absent or rare from the
Enrolled Lands, so there is not an immediate concern that an “unlimited
number of martens” will be taken as a result of Green Diamond’s logging
33
operations. The analysis would be different if, for example, Green Diamond
sought to log lands which already contained established marten populations
without any avoidance measures in place to guard against incidental take.
In addition to assisted dispersal, the Assessment recommended that
“conservation actions to improve conditions in key areas [were] needed
immediately.” These key areas are the connectivity improvement areas,
including the Enrolled Lands, located “between extant populations and areas
that are currently suitable but unoccupied.” The overarching goal of these
recommended conservation actions is to promote the expansion and re-
establishment of marten populations within their suitable habitats. In
response to these recommendations, the Agreement sought to create or
improve important marten habitat features on the Enrolled Lands, including
those that would minimize known threats to the martens.
The retention of slash piles, woody debris, and trees through the TREE
scorecard system for example, provides martens with more structures to rest
within and hide from predators. This recognizes that “predator avoidance
has likely been an important factor shaping their evolution” and ability to
survive. Moreover, in the two areas martens have been detected on the
Enrolled Lands, the Agreement minimizes the threat of logging by either
prohibiting or severely limiting timber harvesting in these areas.
As the trial court noted, if no martens make their way onto the
Enrolled Lands, then no take will occur on the Enrolled Lands. If some
martens do make their way onto the Enrolled Lands due to the improved
habitat features, the Agreement implements certain minimization measures
to avoid any incidental take. The den retention and related no-harvest zone
measures for example, guard against the recognized threat that timber
harvest operations “may take denning females and kits through removal of
34
the denning structure, or disturbance causing abandonment of the occupied
den resulting in death of dependent kits.”
Measures against unauthorized marijuana cultivation on the Enrolled
Lands directly minimizes the threat to martens from the “uncontrolled use of
rodenticides and other toxic chemicals in the illegal production of marijuana”
as highlighted in the Assessment. The Agreement incorporates the
Assessment’s direct recommendations and requires that Green Diamond
maintain locked gates on roads and conduct aerial surveys “for marijuana
cultivation hot spots where martens are likely to be exposed to pesticide use
on the Enrolled Lands.” These commitments show that the Department not
only considered known threats to martens and reasonably foreseeable
impacts on martens from activities like timber harvesting and marijuana
cultivation (§ 2081, subd. (c)), but also put in place measures to actively
minimize these threats and impacts to avoid incidental take.
In Environmental Council of Sacramento, supra, 142 Cal.App.4th at
pages 1043–1044, the court found that substantial evidence supported the
Department’s finding of no jeopardy to support its incidental take
authorization of threatened species of hawks and snakes under a
conservation plan. The court concluded that “Presumably because the
Conservation Plan minimizes and fully mitigates the impacts of the take of
the threatened species, the Department also found it would not jeopardize the
continued existence of the hawks and snakes.” (Id. at p. 1043.) These
minimization and mitigation features “including the purchase of reserve
lands to be developed and maintained as a high quality habitat, adaptive
management . . . and extensive compliance and biological effectiveness
monitoring.” (Ibid.) Likewise here, the avoidance and minimization
measures discussed above, combined with the Agreement’s adaptive
35
management provisions and monitoring program, support the Department’s
finding of no jeopardy.
The Centers point out that although the Agreement has a provision
that prohibits Green Diamond from causing the marten population on the
Enrolled Lands to drop below the “baseline,” this provides no backstop
against how many martens Green Diamond may take since the Agreement
set the baseline to zero martens. We do not find this line of argument
persuasive because it assumes both that a large number of martens will come
onto the Enrolled Lands and that Green Diamond will take most or all of
them. This assumption is contrary to evidence in the administrative record
that martens can persist on managed lands, and disregards the measures set
out in the Agreement to avoid or minimize incidental take of martens that
find their way onto the Enrolled Lands.
Finally, the Agreement “allows for mutually agreed-upon changes” to
be made to these measures “in response to changing conditions or new
information” to better avoid any incidental take or to provide a net
conservation benefit. The Department also has the ability to terminate the
Agreement in its discretion if it finds that “the Agreement is not providing a
Net Conservation Benefit or otherwise is not satisfying the requirements of
the Program.” These adaptive provisions further ensure that the Agreement
will not jeopardize the continued existence of Humboldt martens as the
Department can take ameliorative action in the event the adverse impacts of
any taking become unjustified in light of the benefits.
DISPOSITION
The judgment denying the Centers’ petition for writ of mandate is
affirmed. Each party shall bear its own costs.
36
_________________________
Van Aken, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Miller, J.
Environmental Protection Information Center et al. v. Department of Fish
and Wildlife; Green Diamond Resource Company, RPI (A163051)
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
37