In an unpublished opinion in Paulek v. Department of Fish & Game, 2014 Cal. App Unpub. LEXIS 7710, the Court of Appeal for the Fourth District affirmed the trial court’s denial of a writ of mandate challenging the application of categorical exemptions to the California Environmental Quality Act (CEQA) for the Department of Fish and Wildlife’s (formerly Department of Fish and Game) acquisition of a conservation easement over a portion of property held by a hunting club.

The easement limited development at the 92-acre Ramona Duck Club and incorporated two requirements from a previous conditional use permit (CUP): 1) a prohibition on lead shot, and 2) removal of an iron gate on the property. The Wildlife Conservation Board (Board) approved the easement and determined the easement was exempt from environmental review under CEQA Guidelines sections 15313 as an acquisition of land for fish and wildlife conservation purposes, and 15325 as a transfer of property rights for preservation of habitat.

The petitioner conceded the categorical exemptions applied, but argued the easement presented unusual circumstances that precluded reliance on the exemptions. The test for unusual circumstances requires a court to find that: 1) the project presents unusual circumstances, and 2) there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. While appellate courts are split on the application of the second prong—requiring either a fair argument that there may be a significant environmental impact or substantial evidence of no significant effect—the court followed precedent in the Fourth District and applied the fair argument test.

As to the first prong, the court rejected the petitioner’s argument that the use of lead shot, erection of an iron gate, and presence of rare and endangered species on the site presented unusual circumstances for a conservation easement. But even assuming the easement presented unusual circumstances, the court held the petitioner failed to make a fair argument of a reasonable possibility the easement would have a significant effect on the environment. The court explained that easements do not create any rights and as a result, cannot be the cause of any environmental impacts. Additionally, the easement in conjunction with the conditions in the CUP completely eliminated possible effects.

Finally, the court rejected petitioner’s argument that the Board improperly considered mitigation measures in finding the categorical exemptions applied. The court first found that the petitioner had failed to exhaust administrative remedies by not presenting this argument to the Board. The court further held that, even if the petitioner had presented this argument, the very purpose of the easement was to preserve wetlands and reduce the hunting club’s environmental impacts. Accordingly, the easement’s restrictions on the hunting club’s development on the property did not constitute mitigation measures.