In an unpublished opinion, the court held that petitioner failed to satisfy the fair argument test showing that the “unusual circumstances” exception precluded application of categorical exemptions under CEQA. (Paulek v. Dept. of Fish & Game v. Ramona Duck Club (Oct. 28, 2014) Case No. D065278.)
The Wildlife Conservation Board approved the acquisition of a conservation easement over a portion of property owned by Ramona Duck Club by the Department of Fish and Game (now the Department of Fish and Wildlife). The Conservation Board determined the easement was exempt from CEQA under two categorical exemptions, one pertaining to acquisition of lands for fish and wildlife conservation purposes (Class 13, Guidelines § 15313) and another for transfers of ownership interests in land in order to preserve open space, habitat, or historical resources (Class 25, Guidelines § 15325). Petitioner conceded that both categorical exemptions applied, but that the trial court erred in finding the unusual circumstances exception to the exemptions did not apply. Petitioner also contended the conservation easement was ineligible for a categorical exemption because the Board improperly considered mitigation measures in making its exemption determination. The court disagreed.
The unusual circumstances exception applies to nullify application of a categorical exemption where 1) the project presents unusual circumstances, and 2) there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. Petitioner argued the Duck Club’s previous erection of a gate and the presence of rare and endangered plants on the conserved property were unusual circumstances creating a significant risk of adverse effects on the environment. Applying the less deferential fair argument standard, whereby the court reviews the record to determine whether it contains evidence of a fair argument that the project may have a significant effect on the environment, the court held petitioner’s cited facts did not amount to unusual circumstances.
Even assuming the circumstances qualified as unusual for a conservation easement, the court further concluded there was no showing that there was a chance of significant effects on the environment due to those circumstances. The court noted the conservation easement did not grant the Duck Club any new rights, but merely identified certain preexisting rights that would be reserved, and thus did not cause the environmental effects. The use of lead shot for non-hunting purposes would not have a significant effect on the environment caused by the easement. Use of lead shot was not permitted on the property; but even if it were, the easement reserved that right, rather than creating it. There was no causal connection between the gate and the easement, nor between the easement and endangered plants.
Petitioner failed to exhaust his administrative remedies on the mitigation issue, but the court held that even if he had exhausted, his argument would fail. To the extent the conservation easement mitigated any of the Duck Club’s impacts on the property, it did not do so because they were caused by the conservation easement, but because preservation and protection of resources was the easement’s very purpose.