ORANGE COUNTY PERSPECTIVE : Ways of Protecting Natural Resources

An Orange County judge has ruled that the state Department of Fish and Game lacks statutory authority to sue to protect natural resources from development. It’s a disappointing but not necessarily disastrous decision for the cause of environmental protection in Orange County.

The case involved approval granted Hon Development by the Anaheim City Council in March to build 1,550 homes and a commercial area in Coal Canyon. The canyon is one of the most ecologically important sites in the region, a pathway for migrating mountain lions and home to rare Tecate cypress trees.

In reviewing the development, the Department of Fish and Game had recommended a scaling-back of the development--not a prohibition on it--to protect part of the canyon used by the mountain lions. But its recommendations, designed “to ensure it was done in an environmentally sound manner,” according to Fish and Game biologist Mike Giusti, were disregarded by the city.

The department sued under the California Environmental Quality Act, but then Orange County Superior Court Judge James P. Gray found that the department lacked authority to sue, in effect suggesting that its role in such development was consultative only.

The lower court decision set no legal precedent, but it clearly signaled that the department lacked the clout before the court to enforce its will. If that decision is upheld on appeal, it could weaken greatly the power of any reservations expressed by the Fish and Game Department about that and other developments.

Interestingly, Deputy Atty. Gen. Brian Hembacher, who filed the case on behalf of the agency, observed after the fact that the very same lawsuit could have been brought by the very same lawyer--but with the attorney general named as plaintiff instead of Fish and Game. So in an effort to scale back development deemed by state wildlife experts to be a threat to the environment, the cover on the brief may have to read a little differently another time.

In the meantime, in the absence of a reversal on appeal, the judge has paved the way for full-scale development to proceed. A different judge might have found some latitude under the state Fish and Game Code for the agency to bring suit. But in cases where local officials are intent on ignoring the advice of an environmental agency trying to preserve ecological balance, this case serves as a warning. It may be that the attorney general should press the litigation, not the wildlife experts.