RECENT CALIFORNIA DECISIONS

October 2008

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California Supreme Court Finds Incidental Take Permit with an Overly Broad ‘No Surprise’ Clause An Abuse of Discretion
Environmental Protection and Information Center, et al. v. California Department of Forestry and Fire Protection et al., ___Cal.4th___

In July the California Supreme Court held that, in issuing regulatory approvals to Pacific Lumber for continued logging activities, the California Department of Forestry had not properly approved an identifiable sustained yield plan and had not adequately analyzed the impacts of Pacific Lumber’s activities at the individual planning watershed level. The Court also found that the incidental take permit issued by the California Department of Fish and Game (DFG) was deficient because of the inclusion of an overly broad “no surprise” clause, which limited in advance Pacific Lumber’s obligation to mitigate the impact of its logging operation. The Court ruled this to be inconsistent with the duty to fully mitigate impacts of incidental take.