On October 04, 2018 a
Motion,Ex Parte
was filed
involving a dispute between
Friends Of The Willow Glen Trestle,
Willow Glen Trestle Conservancy,
and
California Department Of Fish And Wildlife,
City Of San Jose,
City Of San Jose Department Of Public Works,
for Environmental/Toxic Tort Unlimited (30)
in the District Court of Santa Clara County.
Preview
XAVIER BECERRA
Attorney General of California
ANNADEL A. ALMENDRAS
Supervising Deputy Attorney General
SarA D. VAN LOH (SBN 264704
CONNIE P. SUNG (SBN 304242)
Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 510-3865
Fax: (415) 703-5480
E-mail: Connie.Sung@doj.ca.gov Exempt from Filing Fees --
Attorneys for Respondent California Gov. Code, § 6103
Department of Fish and Wildlife
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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13 WILLOW GLEN TRESTLE Case No. 18CV335801
CONSERVANCY; and FRIENDS OF THE
14 WILLOW GLEN TRESTLE, RESPONDENT DEPARTMENT OF FISH
AND WILDLIFE’S STATEMENT OF
15 Petitioners, NON-OPPOSITION TO RENEWED
MOTION FOR PRELIMINARY
16 INJUNCTION
17 Date: June 10, 2019
CITY OF SAN JOSE; CITY OF SAN JOSE Time: 2:00 p.m.
18 PUBLIC WORKS; and CALIFORNIA Dept: 5
DEPARTMENT OF FISH AND Judge: The Honorable Thomas E.
19 WILDLIFE, and DOES 1 to 10, Kuhnle
20 Respondents. Action Filed: October 3, 2018
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23 Respondent California Department of Fish and Wildlife (CDFW) submits this statement
24 of non-opposition to Petitioners Willow Glen Trestle Conservancy and Friends of the Willow
25 Glen Trestle’s renewed request for a preliminary injunction, which was filed on June 3, 2019. As
26 expressly clarified in the June 3, 2019 Stipulation, Petitioners’ renewed preliminary injunction
27 motion is sought against the City of San Jose only, not against CDFW. (See 6/3/19 Stip. For
28 Amended Briefing Schedule for Renewed Motion for Prelim. Injunction, at p. 2.) CDFW takes
1
Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801)
no position on whether a preliminary injunction should issue now, because it continues to take no
position on the timing of the Three Creek Trail Pedestrian Bridge Project (the Project) or the
relative weighing of harms between the parties. As a result, CDFW neither opposes nor endorses
Petitioners’ renewed request for a preliminary injunction.
On the merits, however, CDFW emphasizes that it issued its October 4, 2018 streambed
alteration agreement in full compliance with CEQA, because the State Historical Resources
Commission’s listing of the railroad trestle bridge does not result in or show a significant effect to
a biological resource within CDF W’s regulatory authority as a responsible agency. (See Pub.
Res. Code, § 21002.1, subd. (d) [“A responsible agency shall be responsible for considering only
10 the effects of those activities involved in a project which it is required by law to carry out or
11 approve.”]; Center for Biological Diversity v. Cal. Dept. of Fish and Wildlife (2015) 62 Cal.4th
12 204, 214 [CDFW has “direct authority only over biological resource impacts”].)
13 CDFW holds no discretionary authority to mitigate historical resource impacts. There is
14 “no basis” to require an agency “to conduct an environmental review of an issue as to which it
15 would have no ability to respond.” (See San Diego Navy Broadway Complex Coal. v. City of San
16 Diego (2010) 185 Cal.App.4th 924, 940 [where agency discretion on project was limited to
17 aesthetic issues, no requirement that agency mitigate project’s impact on global climate change].)
18 Thus, as a matter of law, a change in the historical designation of the Willow Glen Trestle did not
19 trigger the need for subsequent or supplemental environmental review by CDFW under California
20 Code of Regulations, title 14, section 15162. CDFW reserves the right to present its full
21 argument in forthcoming merits briefing.
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MI
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Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801)
Dated: June 5, 2019 Respectfully Submitted,
XAVIER BECERRA
Attorney General of California
ANNADEL A. ALMENDRAS
Supervising Deputy Attorney General
Os
CONNIE P. SUNG
Sara D. VAH LOH
Deputy Attorneys General
Attorneys for Respondent California
Department of Fish and Wildlife
SF2018201101
21482774.docx
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Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801)
DECLARATION OF SERVICE BY E-MAIL
Case Name: Willow Glen Trestle Conservancy, et al., v. City of San Jose, et al.
No.: 18CV335801
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. 1 am 18 years of age or
older and not a party to this matter.
On June 5, 2019, I served the attached RESPONDENT DEPARTMENT OF FISH AND
WILDLIFE’S STATEMENT OF NON-OPPOSITION TO RENEWED MOTION FOR
PRELIMINARY INJUNCTION by transmitting a true copy via electronic mail, addressed as
follows:
Susan Brandt-Hawley Margo Laskowska
Brandt-Hawley Law Group Office of the City Attorney, City of San Jose
Email: susanbh@preservationlawyers.com Email: margo.laskowska@sanjoseca.gov
Santa Clara County Superior Court
Department 5
Email: JCrabtree@scscourt.org
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on June 5, 2019, at San Francisco, California
Bella Cruz
Declarant Siggature
SF2018201101
21484192.docx
Document Filed Date
June 05, 2019
Case Filing Date
October 04, 2018
Category
Environmental/Toxic Tort Unlimited (30)
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XAVIER BECERRA Attorney General of California ANNADEL A. ALMENDRAS Supervising Deputy Attorney General SarA D. VAN LOH (SBN 264704 CONNIE P. SUNG (SBN 304242) Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-3865 Fax: (415) 703-5480 E-mail: Connie.Sung@doj.ca.gov Exempt from Filing Fees -- Attorneys for Respondent California Gov. Code, § 6103 Department of Fish and Wildlife SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 13 WILLOW GLEN TRESTLE Case No. 18CV335801 CONSERVANCY; and FRIENDS OF THE 14 WILLOW GLEN TRESTLE, RESPONDENT DEPARTMENT OF FISH AND WILDLIFE’S STATEMENT OF 15 Petitioners, NON-OPPOSITION TO RENEWED MOTION FOR PRELIMINARY 16 INJUNCTION 17 Date: June 10, 2019 CITY OF SAN JOSE; CITY OF SAN JOSE Time: 2:00 p.m. 18 PUBLIC WORKS; and CALIFORNIA Dept: 5 DEPARTMENT OF FISH AND Judge: The Honorable Thomas E. 19 WILDLIFE, and DOES 1 to 10, Kuhnle 20 Respondents. Action Filed: October 3, 2018 21 22 23 Respondent California Department of Fish and Wildlife (CDFW) submits this statement 24 of non-opposition to Petitioners Willow Glen Trestle Conservancy and Friends of the Willow 25 Glen Trestle’s renewed request for a preliminary injunction, which was filed on June 3, 2019. As 26 expressly clarified in the June 3, 2019 Stipulation, Petitioners’ renewed preliminary injunction 27 motion is sought against the City of San Jose only, not against CDFW. (See 6/3/19 Stip. For 28 Amended Briefing Schedule for Renewed Motion for Prelim. Injunction, at p. 2.) CDFW takes 1 Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801) no position on whether a preliminary injunction should issue now, because it continues to take no position on the timing of the Three Creek Trail Pedestrian Bridge Project (the Project) or the relative weighing of harms between the parties. As a result, CDFW neither opposes nor endorses Petitioners’ renewed request for a preliminary injunction. On the merits, however, CDFW emphasizes that it issued its October 4, 2018 streambed alteration agreement in full compliance with CEQA, because the State Historical Resources Commission’s listing of the railroad trestle bridge does not result in or show a significant effect to a biological resource within CDF W’s regulatory authority as a responsible agency. (See Pub. Res. Code, § 21002.1, subd. (d) [“A responsible agency shall be responsible for considering only 10 the effects of those activities involved in a project which it is required by law to carry out or 11 approve.”]; Center for Biological Diversity v. Cal. Dept. of Fish and Wildlife (2015) 62 Cal.4th 12 204, 214 [CDFW has “direct authority only over biological resource impacts”].) 13 CDFW holds no discretionary authority to mitigate historical resource impacts. There is 14 “no basis” to require an agency “to conduct an environmental review of an issue as to which it 15 would have no ability to respond.” (See San Diego Navy Broadway Complex Coal. v. City of San 16 Diego (2010) 185 Cal.App.4th 924, 940 [where agency discretion on project was limited to 17 aesthetic issues, no requirement that agency mitigate project’s impact on global climate change].) 18 Thus, as a matter of law, a change in the historical designation of the Willow Glen Trestle did not 19 trigger the need for subsequent or supplemental environmental review by CDFW under California 20 Code of Regulations, title 14, section 15162. CDFW reserves the right to present its full 21 argument in forthcoming merits briefing. 22 M1 23 M// 24 Ml MI 26 /// 27 /I/ 28 /// 2 Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801) Dated: June 5, 2019 Respectfully Submitted, XAVIER BECERRA Attorney General of California ANNADEL A. ALMENDRAS Supervising Deputy Attorney General Os CONNIE P. SUNG Sara D. VAH LOH Deputy Attorneys General Attorneys for Respondent California Department of Fish and Wildlife SF2018201101 21482774.docx 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 3 Respondent CDFW’s Statement of Non-Opposition to Renewed Motion for Prelim. Injunction (18CV335801) DECLARATION OF SERVICE BY E-MAIL Case Name: Willow Glen Trestle Conservancy, et al., v. City of San Jose, et al. No.: 18CV335801 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. 1 am 18 years of age or older and not a party to this matter. On June 5, 2019, I served the attached RESPONDENT DEPARTMENT OF FISH AND WILDLIFE’S STATEMENT OF NON-OPPOSITION TO RENEWED MOTION FOR PRELIMINARY INJUNCTION by transmitting a true copy via electronic mail, addressed as follows: Susan Brandt-Hawley Margo Laskowska Brandt-Hawley Law Group Office of the City Attorney, City of San Jose Email: susanbh@preservationlawyers.com Email: margo.laskowska@sanjoseca.gov Santa Clara County Superior Court Department 5 Email: JCrabtree@scscourt.org I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 5, 2019, at San Francisco, California Bella Cruz Declarant Siggature SF2018201101 21484192.docx