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AVIER ECERRA
Attomey Generalof Califomia
NNADEL LMENDRAS,
Supervising Deputy General
ARA AN OH (SBNDBN 7 04)
ONNIE UNG (SBN 304242)
Deputy Atto General
State Bar No. A2
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
Attorneys for mdent California Exempt from Filing Fees
Department of Fish & Wildlife Gov. Code, § 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ILLOW GLEN TRESTLE Case No. 18CV335801
CONSERVANCY; and FRIENDS OF THE
WILLOW GLEN TRESTLE RESPONDENT DEPARTMENT OF FISH
AND WILDLIFE’S STATEMENT OF
Petitioners, NON OPPOSITION TO PRELIMINARY
INJ UNCTION
Date: October 10, 2018
Time: 1:30 p.m.
CITY SAN JOSE; CITY SANJOSE
PUBLIC WORKS; and CALIFORNIA Judge: The Honorable Thomas E.
DEPARTMENT OF FISH AND Kuhnle
WILDLIFE Trial Date: None scheduled
Action Filed: October3, 2018
Respondents.
Respondent Califomia Department of Fish and Wildlife (CDFW) submits this statement of
non-opposition to Petitioners Willow Glen Trestle Conservancy and Friends of the Willow Glen
Trestle’ s request for a preliminary injunction. CDFW takes no position on whether
a preliminary
injunction should issue, because it takes 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
aresult, CDFW neither opposes nor endorses Petitioners’ request for a preliminary injunction.
Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801)
1
CDFW does, however, dispute the merits of the petition. Accordingly, it would like to
Clarify its role as a responsible agency under the Califomia Environmental Quality Act (CEQA),
and highlight key points from the final streambed alteration agreement it issued on October 4,
2018. CDFW reserves the right to present its full argument in any future merits briefing ordered
by the Court.
esponsible agency is a public agency with discretionary approval authority over a
project for which a lead agency has already prepared a negative declaration, mitigated negative
declaration (MND), or an environmental impact report (EIR . (CEQA Guidelines,
15381.) CDFW’s authority over the Project as a CEQA responsible agency is limitedto the
issuance of a streambed alteration agreement, which is intended to avoid, minimize, and mitigate
any potential substantial adverse impacts to fish and wildlife caused by implementation of the
Project. CDFW’s related authority as Califomia’s trustee agency for fish and wildlife derives
from the Fish and Game Code. (Pub. Res. Code, §§ 21002.1, subd. (d), 21004; CEQA
Guidelines, §§ 15040, 15041, subd. (b), 15386; Center for Biological Diversityv. Cal. Dept. of
Fish and Wildlife (2015) 62 Cal.4th 204, 214 [CDFW has “direct authority only over biological
resource impacts”]).
The Project's potential impacts to fish and wildlife within the bed, bank, or channel of the
Los Gatos Creek
are subject to CDFW’s regulatory authority
under Fish and Game Code sections
1617. Although CDFW may devise measures to protect fish and wildlife resources, nothing
in these statutory provisions gives CDFW authority to disapprove or otherwise decline to issue
the streambed alteration agreement for the Project. (See Fish & G. Code, §§ 1600 1617.)
While CDFW must consider the environmental effects of the Project
as disclosed in the
City’s 2014 MND, CDFW is bound by the presumption that the City’s 2014 MND substantive
determinations regarding Project related environmental impacts are adequate. (Pub. Res. Code, §
21080.1; CEQA Guidelines, § 15096, subd. (f); Laurel Heights Improvement Assn. v. Regentsof
Univ. of California(1993) 6 Cal.4th 1112, 1130.) Because the City choseto continue litigating
the 2014 MND rather than issuing a project approval based
on the 2015 EIR, CDFW relied onthe
2014 MND for its consideration of the Project’s environmental effects.
Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801)
CDFW must consider whether any changes
or new information show the Project
has a
significant environmental effect not discussed in the 2014 MND, substantially more severe than.
described
in the 2014 MND, or that would be substantially
reduced in terms of significance
by an
altemative
to the Project. (Pub. Res. Code,§ 21166; CEQA Guidelines, §§ 15096, 15162.) A
final copy of the streambed alteration agreement for the Project is attached to Petitioners’
Supplemental Declaration of Susan Brandt Hawley in Support of Injunctive Relief. The State
Historical Resources Commissions listing of the railroad trestle bridge does not result in or show
asignificant effect to a biological resource within CDFW’s regulatory authority. No changes,
circumstances, or new information since the 2014 MND have triggered the need for subsequent or
supplemental review, for reasons discussed in the CEQA Consideration Document that CDFW
issued in conjunction
with its final streambed alteration agreement on October 4, 2018. (See
1602 Agreement, Supp. Brandt Hawley Decl. ISO Injunctive Relief, at pp. 8
Dated: October8, 2018 Respectfully Submitted,
AVIER ECERRA
Attomey Generalof Califomia
NNADEL LMENDRAS,
Supervising Deputy Attomey General
/s/ Comnie P. Sung
ONNIE UNG
ARA AH
Deputy Atto General
Attorneys for mdentCalifornia
Department of Fish & Wildlife
SF2018201101
NonOppositionto Preliminary Injunction.docx
Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801)
DECLARATION OF SERVICE BY E-MAIL and U.S. Mail
Case Name: Willow Glen Trestle Conservancy; and Friends of the Willow Glen
Trestle v. City of San Jose; City of San Jose Public Works; and California
Department of Fish and Wildlife
Case 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. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On October 8, 2018, I served the attached RESPONDENT DEPARTMENT OF FISH AND
WILDLIFE’S STATEMENT OF NON-OPPOSITION TO PRELIMINARY
INJUNCTION by transmitting a true copy via electronic mail. In addition, I placed a true copy
thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney
General, addressed as follows:
Susan Brandt-Hawley Margo Laskowska
Brandt-Hawley Law Group Office of the City Attorney
PO Box 1659 200 E. Santa Clara St., 16th Floor
Glen Ellen, CA 95442 San Jose, CA 95113
E-mail: susanbh@preservationlawyers.com E-mail: margo.laskowska@sanjoseca.gov
Via E-mail and U.S. mail Via E-mail and U.S. mail
Courtroom Clerk
Santa Clara Superior Court
E-mail: rwalker@scscourt.org
E-mail: jCrabtree@scscourt.org
Via E-mail
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 October 8, 2018, at San Francisco,
California.
M. Xiang
Declarant Signature
2018201101
21252825.docx
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AVIER ECERRA Attomey Generalof Califomia NNADEL LMENDRAS, Supervising Deputy General ARA AN OH (SBNDBN 7 04) ONNIE UNG (SBN 304242) Deputy Atto General State Bar No. A2 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 Attorneys for mdent California Exempt from Filing Fees Department of Fish & Wildlife Gov. Code, § 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ILLOW GLEN TRESTLE Case No. 18CV335801 CONSERVANCY; and FRIENDS OF THE WILLOW GLEN TRESTLE RESPONDENT DEPARTMENT OF FISH AND WILDLIFE’S STATEMENT OF Petitioners, NON OPPOSITION TO PRELIMINARY INJ UNCTION Date: October 10, 2018 Time: 1:30 p.m. CITY SAN JOSE; CITY SANJOSE PUBLIC WORKS; and CALIFORNIA Judge: The Honorable Thomas E. DEPARTMENT OF FISH AND Kuhnle WILDLIFE Trial Date: None scheduled Action Filed: October3, 2018 Respondents. Respondent Califomia Department of Fish and Wildlife (CDFW) submits this statement of non-opposition to Petitioners Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle’ s request for a preliminary injunction. CDFW takes no position on whether a preliminary injunction should issue, because it takes 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 aresult, CDFW neither opposes nor endorses Petitioners’ request for a preliminary injunction. Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801) 1 CDFW does, however, dispute the merits of the petition. Accordingly, it would like to Clarify its role as a responsible agency under the Califomia Environmental Quality Act (CEQA), and highlight key points from the final streambed alteration agreement it issued on October 4, 2018. CDFW reserves the right to present its full argument in any future merits briefing ordered by the Court. esponsible agency is a public agency with discretionary approval authority over a project for which a lead agency has already prepared a negative declaration, mitigated negative declaration (MND), or an environmental impact report (EIR . (CEQA Guidelines, 15381.) CDFW’s authority over the Project as a CEQA responsible agency is limitedto the issuance of a streambed alteration agreement, which is intended to avoid, minimize, and mitigate any potential substantial adverse impacts to fish and wildlife caused by implementation of the Project. CDFW’s related authority as Califomia’s trustee agency for fish and wildlife derives from the Fish and Game Code. (Pub. Res. Code, §§ 21002.1, subd. (d), 21004; CEQA Guidelines, §§ 15040, 15041, subd. (b), 15386; Center for Biological Diversityv. Cal. Dept. of Fish and Wildlife (2015) 62 Cal.4th 204, 214 [CDFW has “direct authority only over biological resource impacts”]). The Project's potential impacts to fish and wildlife within the bed, bank, or channel of the Los Gatos Creek are subject to CDFW’s regulatory authority under Fish and Game Code sections 1617. Although CDFW may devise measures to protect fish and wildlife resources, nothing in these statutory provisions gives CDFW authority to disapprove or otherwise decline to issue the streambed alteration agreement for the Project. (See Fish & G. Code, §§ 1600 1617.) While CDFW must consider the environmental effects of the Project as disclosed in the City’s 2014 MND, CDFW is bound by the presumption that the City’s 2014 MND substantive determinations regarding Project related environmental impacts are adequate. (Pub. Res. Code, § 21080.1; CEQA Guidelines, § 15096, subd. (f); Laurel Heights Improvement Assn. v. Regentsof Univ. of California(1993) 6 Cal.4th 1112, 1130.) Because the City choseto continue litigating the 2014 MND rather than issuing a project approval based on the 2015 EIR, CDFW relied onthe 2014 MND for its consideration of the Project’s environmental effects. Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801) CDFW must consider whether any changes or new information show the Project has a significant environmental effect not discussed in the 2014 MND, substantially more severe than. described in the 2014 MND, or that would be substantially reduced in terms of significance by an altemative to the Project. (Pub. Res. Code,§ 21166; CEQA Guidelines, §§ 15096, 15162.) A final copy of the streambed alteration agreement for the Project is attached to Petitioners’ Supplemental Declaration of Susan Brandt Hawley in Support of Injunctive Relief. The State Historical Resources Commissions listing of the railroad trestle bridge does not result in or show asignificant effect to a biological resource within CDFW’s regulatory authority. No changes, circumstances, or new information since the 2014 MND have triggered the need for subsequent or supplemental review, for reasons discussed in the CEQA Consideration Document that CDFW issued in conjunction with its final streambed alteration agreement on October 4, 2018. (See 1602 Agreement, Supp. Brandt Hawley Decl. ISO Injunctive Relief, at pp. 8 Dated: October8, 2018 Respectfully Submitted, AVIER ECERRA Attomey Generalof Califomia NNADEL LMENDRAS, Supervising Deputy Attomey General /s/ Comnie P. Sung ONNIE UNG ARA AH Deputy Atto General Attorneys for mdentCalifornia Department of Fish & Wildlife SF2018201101 NonOppositionto Preliminary Injunction.docx Respondent Dept. Fish & Wildlife Stmt. of Non Oppositionto Prelim. Injunction (18CV335801) DECLARATION OF SERVICE BY E-MAIL and U.S. Mail Case Name: Willow Glen Trestle Conservancy; and Friends of the Willow Glen Trestle v. City of San Jose; City of San Jose Public Works; and California Department of Fish and Wildlife Case 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. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 8, 2018, I served the attached RESPONDENT DEPARTMENT OF FISH AND WILDLIFE’S STATEMENT OF NON-OPPOSITION TO PRELIMINARY INJUNCTION by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: Susan Brandt-Hawley Margo Laskowska Brandt-Hawley Law Group Office of the City Attorney PO Box 1659 200 E. Santa Clara St., 16th Floor Glen Ellen, CA 95442 San Jose, CA 95113 E-mail: susanbh@preservationlawyers.com E-mail: margo.laskowska@sanjoseca.gov Via E-mail and U.S. mail Via E-mail and U.S. mail Courtroom Clerk Santa Clara Superior Court E-mail: rwalker@scscourt.org E-mail: jCrabtree@scscourt.org Via E-mail 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 October 8, 2018, at San Francisco, California. M. Xiang Declarant Signature 2018201101 21252825.docx