Court Clarifies Live Trapping & Fish Relocation of Endangered Species not a "Take" if Done for Conservation Purposes

Center for Biological Diversity v. Department of Fish and Wildlife

(2014) ___ Cal.Rptr.3d ___

A California Court of Appeal, in a wide-ranging opinion overturning the trial court's decision to set aside the EIR for the Newhall Ranch Project, recently held that a "take" of an endangered species does not include live trapping and relocation when done for conservation purposes. This decision, among other things, harmonizes the California Endangered Species Act ("CESA") with other statutory provisions as they relate to conservation.

The case arose after the Center for Biological Diversity ("CBD") challenged the EIR for the Newhall Ranch Resource Management and Development Plan. CBD alleged that the Department of Fish & Wildlife ("DFW") abused its discretion by failing to prevent a "taking" of the unarmored threespine stickleback, a "fully protected fish" under state law. Environmental studies concluded there would be both direct and indirect impacts to the stickleback, mostly from bridge construction. The EIR concluded, however, that these impacts would be mitigated to less than significant levels with mitigation, including using block netting and live trapping and relocation during construction. In decertifying the EIR, the trial court held that these proposed mitigation actually resulted in a "take" of the stickleback under state law.

The Court of Appeal reversed. The Court noted that the CESA must be read together with other statutory provisions. Specifically, the CESA's definition of "take" must be harmonized with other sections of the Fish and Game Code, one of which expressly provides for live trapping and fish relocation as a method of conserving endangered species. Accordingly, the Court concluded that mitigation in the form of live trapping and fish relocation did not constitute a "take" because it was proposed for conservation purposes.

This decision is noteworthy because it offers project proponents a wider range of mitigation options when dealing with endangered species.

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