DFG strikes out
Supes deny tract map appeal
The Department of Fish and Game (DFG) may have known it had two men out and a two-strike county when the agency stepped into the Mono County Board of Supervisors batter’s box on Tuesday. DFG was appealing Mono County Planning Commission approval of a Tract Map for a parcel split.
That decision, made earler this year, paved the way for property owner George Mead, a Sacramento-area resident, to subdivide his 120 acres of land on Burcham Flats Road into 40-acre parcels to accommodate three single-family homes.
Mead’s property abuts DFG land, and wildlife advocates oppose any development on his property, saying the sage grouse population on the property is on the decline. That argument has been questioned by those pointing out that the sage grouse population has been declining already, development or not.
In the County’s staff report to the Board during the public hearing, Assistant Counsel Stacey Simon said Supervisors would need to weigh the following when considering the appeal, and whether and how to move forward with it:
Is DFG appealing the Tract Map or a component CEQA (California Environmental Quality Act) finding of negative impact? Is the appeal timely? What is the scope of the appeal?
As Simon pointed out, if the appeal was about the Tract Map, it’s not timely. DFG apparently missed the state-specified 10-day window to file an appeal. If it’s about the CEQA finding, however, it would still be timely, falling within the 15-day window for challenging such documents.
The language in the DFG’s appeal wasn’t entirely specific, saying only that it disputed the “findings.” Richard Liebersbach, representing Mead’s interests, said there is no mention of CEQA in the appeal letter and that DFG is “really stretching the language.”
DFG Deputy Regional Manager Bruce Kinney clarified the wording, saying that by “findings” the agency’s intent was to included CEQA as part of the dispute.
Liebersbach focused on the Tract Map as a whole, however, stating his position that, while he understands the DFG’s protest, “it’s not their first dance, not their first hearing, not their first appeal.”
Citing state code, Liebersbach argued that “an appeal shall be filed within 10 days after an advisory action.” He called the situation “jurisdictional,” and suggested that the Board really doesn’t have the power to go forward. “The DFG may have been misled by the staff report as to the window of limitations,” Liebersbach conceded, “but they have to live by the same law. Reality: the law says 10 days. Clerks can’t change the law.”
He likened the situation to an appraisal appeal. If a taxpayer misses a deadline, [the appeals board] may want to consider the appeal, but the law must be followed, he illustrated. “[The Board] may want to pass it along, ignore the central issue, but you can’t,” he stated.
The sticking point, however, was whether the CEQA complaint could be consider outside the context of the Tract Map approval. Simon advised the DFG’s letter “amending” its complaint, can be considered timely if it relates back to the original complaint, and can be filed after the statute of limitations has expired.
Liebersbach cautioned that in any case, County Code prohibits any new information from being introduced that wasn’t submitted to the Planning Commission.
Supervisor Vikki Bauer said that was simply a “bump in the road,” and wanted to decide the appeal on its merits. The Planning Commission, Simon said, approved the map, findings and variances, including the CEQA document of negative mitigated declaration. The amended appeal, she added, provides the Board two ways to rule: narrowly, considering the map only, or broadly, allowing the individual components, including CEQA, meaning the appeal could be decided on merit.
“If the DFG was the common man, Mr. DFG, this appeal wouldn’t go forward,” commented Supervisor Hap Hazard. “[DFG] saw the amended appeal as another attempt to get the issue back on the table. The sage grouse’s population has been diminishing without any development, and I’m not seeing sufficient input from DFG as to what the real problem is.”
Board Chair Byng Hunt referenced the limitations imposed by the Subdivision Map Act (SMA), and indicated his take that the burden of timeliness was on the DFG. “I’m of the opinion that the appeal at this point is not timely, and the Board is not within its rights to go further,” Hunt said.
Supervisor Bob Peters added that he thinks the project “will be better for the sage grouse in the long run.”
The majority of the Board voted to rule that the DFG appeal should be governed solely by the 10-day limitations set forth by the SMA and County Code, and denied the appeal 3-1, with Bauer dissenting. (Supervisor Tom Farnetti was unable to attend the hearing.)
“DFG doesn’t want anything built,” opined Liebersbach. “They’re sending a message: ‘Don’t push the sage grouse. We’re gonna fight it.’” He suggested that the agency take a more constructive stance, and work with government and other entities to rehabilitate different properties.
The denial may not, however, be game over for the DFG, which can still force extra innings by filing lawsuits at the state level with the Attorney General’s office.
DFG had already allowed the possibility that it would file suit even if the appeal had been denied on merit. It’s unclear at this point as to whether the AG’s office would consider taking up the action, should DFG decide to pursue that course.
Attorney General Jerry Brown has his eye on the governor’s mansion and may not want to compromise votes on an obscure rural environmental issue that may yield little in the way of dividends to his campaign.
The sage grouse is not on the country’s Endangered Species List. DFG still issues certain hunting permits for the birds.
