CENTER FOR BIOLOGICAL DIVERSITY v. DEPARTMENT OF FISH AND WILDLIFE (NEWHALL LAND AND FARMING COMPANY)Respondents’ OppositionCal.March 23, 2015 SUFREWE COURT COPY CENTER for BIOLOGICAL DIVERSITY SUPREME COUR? March 23, 2015 ae Hon. Tani Gorre Cantil-Sakauye, Chief Justice MAR 2 2015 Supreme Court of California 350 McAllister Street Frank A. McGuire Gierk San Francisco, CA 94102 Deputy Re: No. 8217763 - Center For Biological Diversity, et al. v. California Department ofFish and Game Plaintiffs and Respondents’ Opposition to California Department of Fish and Wildlife’s Request for Judicial Notice Dear Chief Justice Cantil-Sakauye and Associate Justices: Plaintiffs and Respondents Center for Biological Diversity, et al., submit this opposition to Respondent and Appellant California Department of Fish and Wildlife’s Request for Judicial Notice filed on March 16, 2015. The Court may take notice of any matter specified in Evidence CodeSection 452 that is relevant to a material issue. (Evidence Code § 459(a); People ex rel. Lockyer v. Shamrock Foods (2000) 24 Cal.4th 415, 422, fn.2.) The documents the Department presents for judicial notice are extra-record evidence not relevant to any material issue in this case, and judicial notice should therefore be denied. Arizona o California o Nevada o New Mexico o Alaska o Oregon o Minnesota a Washington o Washington, DC John Buse, Senior Counsel o 351 California St., Suite 600 o San Francisco, CA 94104 Phone: 323-533-4416 0 Fax: 415-436-9683 0 jbuse@biologicaldiversity.org Page 2 A. The Department’s Requestfor Judicial Notice of Exhibits A . and B Should be Deniedas these Documents are Irrelevant Extra-Record Evidence The Department contends that Exhibits A and B are relevant to the Department’s Answer to Amicus Curiae Briefs (“Department Amicus Answer”) because they show that the Departmentand the Natural Resources Agency “have adopted policies in furtherance of ‘Governor Brown’s Executive Order NumberB-10-11 (September 19, 2011), which makesit the policy of the state that every agency and department encourage communication and consultation with California Tribes.” (Request for Judicial Notice at pp. 1-2.) Because the Department adopted the policies described in Exhibits A and B after it approved the Project, the policies are irrelevant to the material issues in this case. (Exhibit A [Natural Resources Agency policy adopted November 20, 2012]; Exhibit B [Departmentpolicy issued October 2, 2014]; see Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, 576.) The Departmentdoes not contendthat it observed these policies when Page 3 it reviewed and approved the Project. Nor can it, because the policies did notexist at the time.' The Department’s argumentthat these documents are relevant to its response to the Amicus Brief submitted by the Karuk Tribe also fails. (Department Amicus Answerat p. 6.) The communication and consultation processes described in Exhibits A and B have no relevance to the Karuk Tribe’s argument: that “widespread application” of the Court of Appeal’s ruling on exhaustion of administrative remedies may buttress tribes’ perceptions that state processeslike ' Evenifthe cultural resource policies had been in effect in 2010, the Department does not appear to have complied with them. For example, the Department has acknowledgedthat it delegated preparation of responses to comments on the Final EIR/EIS to Newhall. (Department AnswerBriefat p. 34.) These responses rejected evidence based in Chumashoral and archeological history that the California condor wasa cultural resource celebrated by the ChumashPeoplepriorto the arrival of Europeansettlers. (AR:10733 [response]; 122797, 122799-801 [commentidentifying current and historical cultural significance of condor to Chumash People based on oral history]; 123340 [Los Padres National Forest Ethnographic Report displaying Chumashcavepainting depicting the Condor]; 123640 [Los Padres National Forest Ethnographic Report identifying Chumashsacred site with condorrockart in Project area].) The delegation of responsesandrejection of evidence indicating that condors were culturally significant to Chumash Peoplefails to follow the guiding principle in the Department’s current policy that the Departmentwill seek in goodfaith to “[a]cknowledge and respect California Native American cultural resources regardless of whether those resources are located on or off Tribal Lands.” (Exhibit B atp. 3.) Page 4 CEQAare “stacked against them” by precludingtribal participation in the CEQAprocessatexactly the time when consultation often tends to occur. (Amicus Curiae Br. of the Karuk Tribeat p. 25.) The Court should deny judicial notice of Exhibits A and B because they are post-decisional documentsirrelevantto the Department’s response to the Karuk Tribe’s Amicus Brief or any other material issue in this case. B. The Department’s Request for Judicial Notice of Exhibit C Should be Denied as this Documentis Irrelevant Extra- Record Evidence Offered for an Improper Purpose The Departmentclaims that Exhibit C, the United States Fish and Wildlife Service’s 1985 Recovery Plan for the Unarmored Threespine Stickleback, is relevant because “it showsthat collecting and relocating species in their native habitat is an established conservation method usedbythe U.S. Fish and Wildlife Service and the Departmentforstickleback.” (Request for Judicial Noticeatp. 2.) The Department further contends that recovery efforts described in the Recovery Plan “include rescueefforts for stickleback located in streams with low water levels and transplantation to establish stickleback in other waters.” (/bid.) Page 5 The Recovery Plan states that conservation includes transplantation of stickleback to establish new populations in other waters (Exhibit C at p. 25), but the establishment of new populations as a recovery measureis not at issue in this case. The Recovery Plan further notes that “some sticklebacks” from the Shay Creek population near Big Bear were rescued andplaced in a laboratory at the University of Redlands as a precautionary measure. (/d. at p. 26.) The Recovery Plan portrays this rescue effort not as an “established conservation method,” as the Department claims, but as a contingency measure in response to an emergencysituation. (/d. at pp. 26-27.) The Department’s ability to rescue stickleback in an emergency situation is likewise not at issue in this case, where stickleback will be placed in peril not by any emergencybut by the Department’s approval of the Project. (See Plaintiffs’ Consolidated Reply Briefat pp. 15-16.) Because the Recovery Plan is extra-record evidence.that the Department could have producedat the administrative level and includedin the record “in the exercise of reasonable diligence,” it should not be admitted. (Western States, supra, 9 Cal.4th at p. 578.) Even if it were admissible, the Recovery Plan would not support the Page 6 Department’s claim that“translocation is key to the recovery effort for manyfully protected species, and notably stickleback.” (Department Amicus Answerat pp. 16-17.) The Recovery Plan does notstate that translocation is “key” to the recovery of the stickleback, nor doesit discuss translocation in any context relevant to this case, which involves translocation to mitigate the Project’s adverse effects. (Exhibit C at pp. 25-27.) Moreover, the Department appears to request that this Court take judicial notice of the truth of statements in Exhibit C. While courts may notice official acts and public records, they “do not take judicial notice ofthetruth of all matters stated therein.” (Manginiv. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled on other groundsby Jn re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) “[T]he taking ofjudicial notice of the official acts of a governmental entity does not in and ofitself require acceptance of the truth of factual matters which might be deducedtherefrom,since in many instances whatis being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.” (Ibid. [quotation omitted].) Page 7 Accordingly, nothing in Exhibit C can be relied upon to contravene record evidence indicating that the stickleback transplantation efforts described in the Recovery Plan havefailed or, at best, have an unknownstatus. (AR:108853 [U.S. Fish and Wildlife Service May 29, 2009 Five-Year Status Review ofUnarmored Threespine Stickleback].) The 2009 Status Review cites the Project’s stream channelization and urbanization as ongoing threats justifying the continued endangeredstatus of the stickleback, but does not document any ongoingstickleback transplantation efforts, nor doesit recognize that the Department’s authorization of the capture and relocation of stickleback as mitigation for the Project is an “established conservation method.” (AR:108861-62.) The Court should deny judicial notice of Exhibit C asit is extra-record evidence not material to any issue in this case. The Court also should decline to take notice of the truth of any assertion therein. March 23, 2015 By: spot John Buse Attorney for Plaintiffs and Respondent PROOF OF SERVICE I, Russell Howze, declare as follows: I am employed in the County of San Francisco, State of California. I am over the age of eighteen and my business address is 351 California St., Suite 600, San Francisco, CA 94104. On March 23, 2015, I served the following document(s) entitled: PLAINTIFFS AND RESPONDENTS’ OPPOSITION TO CALIFORNIA DEPARTMENTOFFISH AND WILDLIFE’S REQUEST FOR JUDICIAL NOTICE | by placing a copy thereof enclosed in a sealed envelope addressed as follows: For Appellant California DepartmentofFish and Game: Thomas R.Gibson John H. Mattox California Dep’t of Fish and Game 1416 9th St., Floor 12 Sacramento, CA 95814 Tina A. Thomas Ashley T. Crocker AmyR. Higuera Thomas Law Group 455 Capitol Mall, Suite 801 Sacramento, CA 95814 For Appellant The Newhall Land and Farming Company: Mark J. Dillon Gatzke Dillon & Balance LLP 2762 Gateway Road Carlsbad, CA 92009 Miriam A Vogel Morrison & Foerster LLP 707 Wilshire Blvd., Ste. 6000 Los Angeles, CA 90017-3543 Arthur G. Scotland Nielsen MerksamerParinello Gross & Leoni LLP 1415 L Street, Suite 1200 Sacramento, CA 95814 Patrick Mitchell Mitchell Chadwick LLP 3001 Lava Ridge Ct., Ste 120 Roseville, CA 95661 Page 2 For Amicus Curiae California Chamber ofCommerce: Christopher W.Garrett Taiga Takahashi Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 For Amicus Curiae Foothill/Eastern Transportation Corridor Agency, San Joaquin Hills Transportation Corridor Agency, Kern County Water Agency: Robert D. Thornton Stephanie N. Clark Nossaman LLP 18101 Von Karman Avenue,Suite 1800 Irvine, CA 92612 For Amicus Curiae Riverside County Transportation Commission: Steven C. DeBaun Charity Schiller Best Best & Krieger 3390 University Ave., 5th Floor Riverside, CA 92501 For Amicus Curiae State Water Contractors: Stefanie D. Morris State Water Contractors 1121 LSt., Suite 1050 Sacramento, CA 95814 For Amicus Curiae Metropolitan Water District ofSouthern California: Robert C. Horton Metropolitan Water District of Southern California 700 North AlamedaSt. Los Angeles, CA 90012 Page 3 For Amicus Curiae Los Angeles County Metropolitan Transportation Authority: MarkJ. Saladino Charles M.Safer Ronald W. Stamm Office of the County Counsel One Gateway Plaza Los Angeles, CA 90012 For Amicus Curiae Kern County Water Agency: Amelia T. Minaberrigarai Kern County Water Agency PO Box 58 Bakersfield, CA 93302 For Amicus Curiae Environmental Protection Information Center, Audubon California, and California Trout, Inc.: Lucy H. Allen Environmental Protection Information Center 145 South G St., Suite A Arcata, CA 95521 Austin Sutta Sharon E. Duggan 336 Adeline Street Oakland, CA 94607 For Amicus Curiae Santa Clarita Valley Economic Development Corporation: David S. Poole John H. Shaffery Samuel R. W.Price Poole & Shaffery, LLP 400 South Hope St., Suite 1100 Los Angeles, CA 90071 For Amicus Curiae Planning and Conservation League: Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, CA 95442 Page 4 For Amicus Curiae The Karuk Tribe, The Kashia Band ofPomo Indians of Stewarts Point Rancheria, The Pala Band ofMission Indians, The Pechanga Band ofLuiseno Indians, The Santa Ynez Band ofChumash Indians, and The Tinoqui- Chaloa Council ofKitanemuk & Yowlumne Tejon Indians ofthe Former Sebastian Indian Reservation: Courtney Ann Coyle 1609 Soledad Ave. La Jolla, CA 92037 For Amicus Curiae California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry Association ofthe Bay Area, California Business Properties Association, and California Association of Realtors: Michael H. Zischke Andrew B. Sabey Linda C. Klein James M. Purvis Cox Castle & Nicholson LLP 555 California St., 10th Floor San Francisco, CA 94104 For Amicus Curiae Governors George Deukmejian, Pete Wilson, and Gray Davis: Mark E. Haddad Michelle Beth Goodman Wen W.Shen Sidley Austin LLP 555 West 5th St., Suite 4000 Los Angeles, CA 90013-1010 David L. Anderson Sidney Austin LLP 555 California St., Suite 2000 San Francisco, CA 9410 Page 5 For Amicus Curiae Metropolitan Air Quality ManagementDistrict: Kathrine Currie Pittard Sacramento Metropolitan Air Quality ManagementDistrict 777 12th Street, 3rd Floor Sacramento, CA 95814 For Amicus Curiae San Joaquin Valley Air Pollution Control District, and County ofKern: Jennifer L. Hernandez Charles Coleman HI Holland & Knight LLP 50 California St,, 28th Floor | San Francisco, CA 94111 For Amicus Curiae The League ofCalifornia Cities, The California State Association ofCounties, The California Special Districts Association, The Southern California Association ofGovernments: Kevin Siegel Stephen Velyvis Burke, Williams & Sorensen LLP 1901 Harrison St., Suite 900 Oakland, CA 94612 For Amicus Curiae Sierra Club, Natural Resources Defense Council, and Communitiesfor a Better Environment: Matthew Vespa Sierra Club 85 Second St., 2nd Floor San Francisco, CA 94105 Page 6 I served the document by enclosing copies in envelopes and delivering the sealed . envelopes to a United States Postal Service collection location, prior to the last pick-up on the day of deposit, fully prepaid First Class Mail. I declare under penalty of perjury underthe lawsofthe state of California that the foregoingis true and correct and that this Proof of Service was executed on March 23, 2015, at San Francisco County, California. “delta—~ Russell Howze
